In re M.M.

303 So.3d 1095

IN RE: the Judicial COMMITMENT OF M.M. (Brossette Contempt Proceeding)

No. 53,577-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered September 23, 2020.

STEPHANIE M. BORGHARDT, EDWARD M. BROSSETTE, KRYSTAL AIRS BROWN, NEIL RISLEY ELLIOTT, JR., Counsel for Appellant, Edward M. Brossette (Contempt)

Before PITMAN, GARRETT, and STEPHENS, JJ.

STEPHENS, J.

Edward M. Brossette appeals a judgment of the First Judicial District Court, for the Parish of Caddo, State of Louisiana. In that judgment, Brossette's motion requesting an impartial judge was denied. In the same judgment, Brossette was determined to be in constructive contempt of court and ordered to pay a fine of $100.00 and serve four (4) hours of confinement in the Caddo Correction Center. For the following reasons, we reverse the trial court's judgment and remand for additional proceedings.

FACTS

This appeal stems from a judicial commitment proceeding concerning M.M., a woman who was 57 years old at the time of her commitment. Although this appeal does not pertain to her judicial commitment, it is necessary to address the details of that proceeding as they directly relate to the issues on appeal.

M.M. suffers from a dual diagnosis—schizoaffective disorder (a mental disorder) combined with a mild intellectual disability (a developmental disability). This dual diagnosis created a procedural problem for the Louisiana Department of Health (the "LDH"), Brossette, and the trial court, specifically Judge Robert Waddell. The relevant and ongoing issue in the proceedings was the applicable statutory law for her commitment.¹ For her developmental disability, M.M. was receiving support from the Office for Citizens with Developmental Disabilities ("OCDD"), which operates under the umbrella of LDH. However, M.M.’s mental illness ultimately deteriorated to a point where she was considered to be dangerous to herself and others, and the OCDD allegedly could no longer address or meet M.M.’s needs. Thus, on July 22, 2019, M.M. was admitted to Lafayette General Hospital for inpatient psychiatric treatment.

LDH determined that M.M. needed long-term inpatient psychiatric treatment to stabilize her, and the only available program LDH could locate was at Brentwood Hospital ("Brentwood") in Shreveport. M.M. was admitted to Brentwood on July 25, 2019, prior to the filing of the petition. On July 31, 2019, the petition for commitment was filed pursuant to La. R.S. 28:54, et seq. by the LDH, Office of Behavioral Health, represented by Brossette.

An order was entered by the trial court setting a commitment hearing for August 7, 2019. Dr. Olufemi Ogundeji was ordered to exam M.M. and prepare a report to determine if she met the criteria for legal commitment. In that same order, M.M. was appointed an attorney by the Mental Health Advocacy Service ("MHAS"), which ultimately assigned attorney Al Sale to represent her. On the day of the scheduled hearing, Sale filed a motion for dismissal claiming he was not given the requisite reasonable notice with a physician's report pursuant to La. R.S. 28:54(D)(1).² Sale also alleged a judicial commitment should have been filed under the state's developmental disability law to assure that M.M. received appropriate treatment and benefits under that area of the law, specifically La. R.S. 28:454.5, et seq.

At the August 7 hearing, Judge Waddell noted Brossette had not filed the physician's report. Sale pointed out that Brossette had failed to produce the requisite written report by Dr. Ogundeji as Judge Waddell had ordered. The record reflects that Brossette apparently failed to inform Dr. Ogundeji he was to prepare a report for the trial court. As a result, Sale also brought up the issue of having OCDD added to the proceedings. The commitment hearing was continued until August 14, and Brossette amended the petition, alleging that M.M.’s treating physician at Brentwood would prepare a report and have it to MHAS at least three days prior to the hearing.

The commitment hearing commenced on August 14, 2019, and the record reflects an "off the record discussion" was held as to the timeliness of the required physician's report. Brossette was admonished by Judge Waddell, and he informed Brossette, "[t]here's no excuse for that." However, the proceeding commenced. Dr. Ogundeji testified that M.M. had required acute, inpatient psychiatric hospitalization eleven times in the last eight months. He testified her behavior was "very unmanageable at this time." Dr. Ogundeji concluded that M.M. was dangerous to herself and others and met the criteria for a mental health commitment. M.M. did not refute the LDH's evidence and did not request an independent medical opinion. Based on M.M.’s demeanor (she had an outburst requiring her removal from the hearing) and Dr. Ogundeji's report and testimony, Judge Waddell concluded,

[t]here's no question that the lady is a danger to herself or others and gravely disabled .... I'm going to commit her to LDH, but I'm going to order that this case be continued two weeks for placement. The real issue here is placement and what services she can get.

Significantly, no judgment was signed at that time committing M.M., and the matter was continued to August 28, 2019, purportedly in order to determine M.M.’s placement.

Prior to the scheduled August 28 placement hearing, the record reflects an opening became available at Northlake Behavioral Health System ("Northlake") in St. Tammany Parish. Brossette asserts he notified the trial court and Sale by e-mail on August 27 of the opening at Northlake; however, Sale informed Brossette he opposed the move. Brossette claims no opposition to the relocation was made by the trial court, and on the same day, despite the objection by Sale, LDH transported M.M. from Brentwood to Northlake.

At the August 28 placement hearing, Judge Waddell informed Brossette he had not intended for M.M. to be placed until the placement hearing had occurred. He also informed Brossette that M.M. had not been judicially committed to the custody of LDH and refused to sign the prepared commitment judgment. Sale explained he also refused to sign the judgment because the LDH amended petition only cited mental health law and made no mention of the applicable developmental disability law. Further, Sale did not agree to waive M.M.’s appearance at the subsequent hearing; thus, the trial court ordered M.M. be returned to Caddo Parish for the next hearing. Judge Waddell additionally ordered that M.M. be returned for further evaluation and determination as to proper services on her behalf.

On September 5, 2019, Brossette filed a motion and order for dismissal of the amended petition—notably, the trial court still had not issued a judgment on the commitment proceedings at this time. Brossette asserted in the motion that he was under the impression M.M. had been committed to the custody of LDH, and he referenced the trial court minutes from the initial proceeding. Further, he asserted that based on this assumption, LDH placed M.M. at Northlake on September 27. Therefore, after receiving a Physician's Emergency Certificate ("PEC"), he sought dismissal of the petition, which would allow Northlake authority to retain M.M. as a patient. Brossette claimed the PEC made LDH's amended petition moot. In response, Sale filed a reconventional demand asserting M.M. had been transferred to Northlake and not returned to Caddo Parish in violation of the trial court's order. Sale alleged M.M. was not receiving treatment for her developmental disability, and her rights as a mental health/developmental disability patient were violated by the PEC. He requested a determination regarding the appropriate placement for M.M. as per the developmental disability law.

The parties returned for a September 9, 2019 hearing, which commenced with the trial court's attention to Brossette's motion to dismiss the judicial commitment. Describing the case as being "fouled up from the first part," Judge Waddell denied Brossette's motion; however, he ultimately entered a judgment finding that M.M. suffered from "mental illness" causing her to be a danger to herself and others. M.M. was judicially committed to the custody of LDH for a period not to exceed 180 days. Further, LDH was ordered to ensure M.M.’s continued eligibility and access to services and the least restrictive placement for her developmental disability. Also, at that hearing, Judge Waddell stated on the record that he was considering citing Brossette and/or LDH with contempt of court. A hearing to determine that issue was set for September 11, 2019.

The September 11 hearing commenced with Judge Waddell noting:

Mr. Brossette is back in the courtroom today for contempt.

I've given this a lot of thought, Mr. Brossette, and I think you're in contempt of court, I think in direct contempt.

****

To me, what you did was even more blatant, because I think you just did not do what I said.

Then, Judge Waddell determined Brossette to be in contempt of court, fining him $500 and sentencing him to 24 hours in jail—all of which he suspended. At that point, Judge Waddell reviewed, in detail, the proceedings and his reasons for concluding Brossette was in contempt. Brossette refused to "accept" Judge Waddell's finding, objected, and requested a hearing on the matter in order to dispute the reasons for the contempt holding. The matter was continued to October 15, 2019.

On October 1, 2019, Judge Waddell filed his own motion against Brossette, a rule nisi for contempt of court. In that filing, Judge Waddell recounted the series of events in connection with M.M.’s judicial commitment, concluding with the claim that Brossette's actions constituted constructive contempt in that he: failed to timely file the physician's report; failed to include OCDD in the matter; transported M.M. to Northlake without authority by the trial court; and, failed to transport M.M. back to Caddo Parish after specifically ordered to do so.

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