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Sunday, July 11, 2010



Original Article


By Mark Hamblett

Former Governor George E. Pataki and other officials can be sued for the involuntary civil commitment of violent sexual predators without notice or a hearing upon the completion of their prison terms, a federal judge has ruled.

Southern District Judge Jed S. Rakoff concluded that Mr. Pataki, the former commissioners of the New York State Department of Correctional Services, the state Office of Mental Health and others are not shielded by qualified immunity for actions that "rather blatantly violated plaintiffs' constitutional rights."

The inmates were shuttled directly from prison to the Manhattan Psychiatric Center after Mr. Pataki unilaterally promulgated a Sexual Violent Predator Initiative in September 2005. He acted after the Legislature several times failed to enact a civil confinement statute.

Judge Rakoff said the governor's initiative ran afoul of U.S. Supreme Court case law and, in any event, "no balancing of public and private interests can remotely justify what happened here."

The state Attorney General's Office has appealed Judge Rakoff's decision in Bailey v. Pataki, 08 Civ. 8563, to the U.S. Court of Appeals for the Second Circuit. Both the office and Mr. Pataki, now of counsel at Chadbourne & Parke, declined comment yesterday.

Six plaintiffs sued Mr. Pataki and several officials alleging a politically motivated conspiracy to violate their civil rights.

The governor's program authorized involuntary civil commitment pursuant to New York Mental Hygiene Law §9.27, which allows two state-employed psychiatrists to commit, without a prior judicial hearing or determination, "any person alleged to be mentally ill and in need of involuntary care and treatment."

But in 2006, the New York Court of Appeals ruled in State ex rel. Harkavy v. Consilvio, 7 N.Y. 3d 607 (2006), that post-release commitment could only occur through Correction Law §402, which permits transfers of inmates to civil confinement in a psychiatric facility only upon a judicial determination made after notice, hearing and examination by court-appointed psychiatrists.

Before the Harkavy decision, the six plaintiffs were all near the end of their prison terms when they were transferred to the psychiatric facility.

After briefing and oral argument, Judge Rakoff dismissed some claims against some of the defendants. But he left in place allegations against Mr. Pataki and his former aides under 42 U.S.C. §1983 for violations of the Fourth and Fourteenth amendments, conspiracy under §§1983 and 1985, state constitutional claims and state law claims for negligence and gross negligence, and claims by three of the plaintiffs for false imprisonment.

'Essential Requirements'

In his opinion Tuesday, Judge Rakoff cited Vitek v. Jones, 445 U.S. 480 (1980), in which the U.S. Supreme Court called involuntary psychiatric commitment "a massive curtailment of liberty" that cannot be done without adequate due process protection, including notice and a hearing.

"The fact that a citizen has been previously convicted of an offense involving sexual violations in no way deprives him of this protection," Judge Rakoff said, adding that the plaintiffs' evidence shows that "none of the essential requirements set forth in Vitek was met."

The plaintiffs, he observed, were transferred "without the slightest advance notice" after being evaluated by two physicians prior to transfer. And he said there was nothing in the record, when viewed in a light most favorable to the plaintiffs, that suggested it was infeasible to accord procedural safeguards to the inmates.

The judge rejected the defendants' claims that their actions were objectively reasonable and not in violation of clearly established law. He added that "it would have been the easiest thing in the world" to follow all the required procedures.

"This is so obvious that no reasonable defendant official could have failed to miss it," Judge Rakoff said.

He said the plaintiffs had put forth evidence that could lead a jury to conclude that the officials knew they were violating the inmates' rights but persisted "in a deliberate decision taken for political reasons."

"To deprive plaintiffs of their constitutional rights for political gain can never be reasonable," he said.

And while Mr. Pataki and the other defendants "vehemently" deny they acted for political advantage, he said, "plaintiffs have proffered sufficient competent evidence to make this a jury question."

Plaintiffs' attorney Ameer Benno said it was absurd for Mr. Pataki and others to claim qualified immunity because they are being indemnified under Public Officers Law §17.

"The whole doctrine of qualified immunity is based on the idea that public officials should be able to act in a way that is bold and decisive without fear of personal litigation," Mr. Benno said. "This perpetrates a fraud on the community, which is not aware that these officials are not going to pay out of their own pocket."

Assistant Attorneys General Edward J. Curtis Jr., Jane R. Goldberg and Matthew Silverman represent the defendants.

After Mr. Pataki left office in 2006, the Legislature enacted Article 10 of the Mental Hygiene Law, which established a process for civil confinement of sexual offenders.

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