Advisory Opinion 2016-005

Application of 45 C.F.R. § 1610.6 to Proceedings Involving Compelled Medication, Involuntary Commitment, or Voluntary Commitment

QUESTION PRESENTED

The State of Maine has proposed a contract for Pine Tree Legal Assistance (“Pine Tree”) to provide court-appointed representation to individuals charged with criminal acts who are mental health patients and have a right to representation regarding proposed medication plans intended to restore them to competency to stand trial in their criminal case.

Legal Services of Northwest Jersey (“LSNWJ”) has contracted with Morris County to represent adults in civil commitment cases pursuant to court appointment. The public defender represents minors in civil commitment cases in Morris County pursuant to court appointment. New Jersey law provides both adults and minors facing civil commitment with the right to be represented by an attorney.

Do the 45 C.F.R. § 1610.6 provisions for a “public defender program or project” (§ 1610.6(a)) or “criminal or related cases . . . pursuant to a court appointment” (§ 1610.6(b)) apply to these situations? Those provisions exempt such a program or project or cases from the LSC requirements in Parts 1613 (criminal proceedings), 1615 (actions challenging criminal convictions), 1626 (citizenship and alienage) and 1637 (civil litigation for prisoners).

BRIEF ANSWER

Yes.

Section 1610.6(b) applies to Maine court appointments involving restoring a patient to competency to stand trial for a criminal act. These court appointments constitute “criminal or related cases” because they are connected to a criminal case.

Section 1610.6(a) applies to the Morris County civil commitment representations because they constitute a “public defender program or project.” Section 1610.6(a) applies to situations in which a state or other governmental unit commits to provide a defender service at public expense and contracts that function out to an LSC funding recipient. Those are the circumstances presented here.

Accordingly, in both situations the court appointments are exempt from Parts 1613, 1615, 1626, and 1637.

BACKGROUND

Contract for Patient-Medication-Plan Representation in Maine

In Maine, a defendant in a criminal proceeding who has been found incompetent to stand trial may be committed to the custody of the Commissioner of Health and Human Services. The Commissioner must provide notice to the court, prosecuting attorney, and attorney for the defendant if the defendant is not consenting to treatment and is unlikely to be restored to competency without administration of psychiatric medication. The prosecuting attorney may file a motion seeking court authorization for involuntary medication of the defendant and the court must conduct a hearing. The Maine Attorney General’s office would like to contract with Pine Tree to provide representation to those patients.

Contract for Civil Commitment Representation in New Jersey

New Jersey law provides individuals facing civil commitment with the “right to be represented by an attorney and, if unrepresented or unable to afford an attorney, the right to be provided with an attorney paid for by the appropriate government agency.” NJSA 30:4-27.11(c). In Morris County, the required government-compensated representation is provided by a public defender’s office or by LSNWJ. Specifically, the New Jersey Office of the Public Defender provides representation for minors who have been involuntarily or voluntarily committed. Similarly, Morris County has contracted with LSNWJ to accept court appointments to provide legal assistance for adults who have been involuntarily or voluntarily committed for treatment.

Under New Jersey law, adults can be committed involuntarily to a short-term care or psychiatric facility, special psychiatric hospital (including forensic psychiatric centers), or assigned to an outpatient treatment provider. All involuntary commitment clients in forensic facilities have associated criminal matters, while some, but not all, clients in other facilities have criminal matters associated with the commitment. Proceedings for involuntary commitment are initiated by presentation of a petition, including a screening document and two clinical certificates, to a Superior or Municipal Court judge. If the judge finds that there is probable cause to believe that the patient is in need of involuntary commitment, the judge may sign an order of temporary commitment. If the patient is not represented by counsel, then the order of temporary commitment must include assignment of counsel. Additionally, it must specify the place and date for an initial commitment hearing within 20 days of admission.

Patients may be voluntarily committed to a short-term or psychiatric facility following evaluation by a screening service. A patient committed voluntarily with no court order of temporary commitment is entitled to a hearing within 20 days of admission to determine: (1) whether the patient had the capacity to make an informed decision, and (2) whether the decision was made knowingly and voluntarily. If a patient in a voluntary commitment is found to have lacked capacity or did not make an informed and voluntary decision, or if a voluntary patient requests discharge, the facility has a limited period of time to either discharge the patient or file for an involuntary commitment. Like patients in involuntary commitment proceedings, indigent patients in voluntary commitment proceedings have a statutory right to court-appointed counsel.

APPLICABLE AUTHORITY

The LSC Act and LSC’s annual appropriations legislation place certain restrictions on the activities of LSC grantees. See 42 U.S.C. § 2996 et. seq. (LSC Act); Pub. L. 104-134, § 504, tit. V, 121 Stat. 1321, 1321-53—1321-56 (1996) (restrictions in LSC’s 1996 appropriation incorporated by reference in LSC’s annual appropriations thereafter). Furthermore, “Section 1010(c) of the LSC Act generally requires that if a grantee’s LSC funds are subject to a prohibition under the LSC Act, then their non-LSC funds are also subject to that prohibition.” EX-2009-1001 at 2 (March 6, 2009). Section 1010(c) contains two exceptions to this requirement: one for the use of public or tribal funds and one covering “legal aid societies having separate public defender programs.” Id. The LSC appropriations restrictions generally apply to all grantee activities, regardless of funding source, with limited exceptions. Id.; see 45 C.F.R. Part 1610—Use of Non-LSC Funds.

45 C.F.R. Part 1610 implements these statutory restrictions by setting forth when the restrictions apply to recipients’ use of non-LSC funds and when they do not. In particular, Section 1610.6 provides that four restrictions do not apply to (a) a “recipient’s or subrecipient’s separately funded public defender program or project,” or (b) “criminal or related cases accepted by a recipient or subrecipient pursuant to a court appointment.” 45 C.F.R. § 1610.6. Those four restrictions appear at 45 C.F.R. Parts 1613 (criminal proceedings), 1615 (actions challenging criminal convictions), 1626 (citizenship and alienage) and 1637 (civil litigation for prisoners). Id. See 61 Fed. Reg. 41960 (Aug. 13, 1996) (Interim Rule); 61 Fed. Reg. 63749 (Dec. 2, 1996) (Final Rule).

ANALYSIS

The Maine court appointments involving restoring a patient to competency to stand trial for a criminal act are “criminal or related cases.”

The questions presented here turn on whether the activities at issue constitute a separately funded “public defender program or project” under § 1610.6(a) or involve “criminal or related cases” handled through court appointments under § 1610.6(b). The LSC Act, the annual appropriations legislation, and the regulations do not define these terms, and the legislative and regulatory history does not provide any guidance as to the intent of these provisions in civil right-to-counsel situations.

With regard to Pine Tree’s question, our focus is on whether the Maine court appointments involve “criminal or related cases.” In the absence of a clear expression of regulatory intent, we must interpret the meaning of these words. The addition of the words “or related” indicates that LSC intended to permit LSC grantees to accept at least some civil court appointments. A contrary interpretation—that § 1610.6(b) permits recipients to accept only criminal appointments—would ignore the term “or related cases.” See EX-2009-1001 (March 6, 2009) (finding that representation of a parent in a civil child protective custody proceeding fits within the exception at 45 C.F.R. § 1610.6). This interpretation is supported by the use of the permissive conjunction “or” rather than the mandatory conjunction “and.” See United States v. Moore, 613 F.2d 1029, 1040 (D.C. Cir. 1979) (“Normally, of course, ‘or’ is to be accepted for its disjunctive connotation, and not as a word interchangeable with ‘and’”).

The dictionary definitions of “related” typically include “connected.” See, e.g., Merriam-Webster Online Dictionarymerriam-webster.com/dictionary/related (August 1, 2016) (“connected in some way . . .”); Black's Law Dictionary 1158 (5th ed. 1979) (“Relate. To stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with”). See also Shaw v. Delta Air Lines, 463 U.S. 85 (1983) (deriving from a Black's Law Dictionary definition the rule that a state law “relates to” an employee benefit plan, and is therefore preempted by § 514(a) of ERISA, if it has a connection with or reference to such a plan). Thus, applying these definitions, a civil case will “relate” to a criminal proceeding if it could result in a criminal penalty such as imprisonment, or is connected to a pending criminal case.1

In light of the definition of the term “related,” we have no difficulty concluding that a case involving the involuntary administration of medication to make a defendant competent to stand trial in a criminal proceeding constitutes a “criminal or related case.” These involuntary medication proceedings are directly connected to the underlying criminal case. The ultimate purpose of the proceeding is to adjudicate a defendant’s competence to stand trial in a criminal case. Therefore, section 1610.6(b) exempts these cases from the requirements of Parts 1613, 1615, 1626, and 1637.

The Morris County civil commitment cases constitute a “public defender program or project.”

Section 1610.6(a) provides that four enumerated restrictions do not apply to a “recipient’s or subrecipient’s separately funded public defender program or project.” We understand the quoted phrase to cover situations in which a state or other governmental unit commits to provide a defender service at public expense and contracts that function out to an LSC funding recipient. Those are precisely the circumstances presented here.

The State of New Jersey, by statute, provides individuals facing civil commitment with the same right to be represented by an attorney as individuals facing criminal prosecution. NJSA 30:4-27.11(c). In Morris County, the New Jersey Office of the Public Defender provides this representation for minors who have been involuntarily or voluntarily committed. To staff this same public defender function for adults, Morris County has contracted with LSNWJ to provide court-appointed legal assistance to adults who have been involuntarily or voluntarily committed for treatment.

Under these circumstances, LSNWJ is plainly carrying out a “public defender” function; indeed, it is sharing the work with the New Jersey Office of the Public Defender. The county pays for the representation. Accordingly, the services provided by LSNWJ in Morris County civil commitment cases constitute a “public defender program or project” under section 1610.6(a) and are exempt from the requirements of Parts 1613, 1615, 1626, and 1637.

As this analysis indicates, the determination of what constitutes a “public defender program or project” or a “criminal or related case” is a circumstance-specific inquiry. This Opinion does not provide a general rule for all civil right-to-counsel situations.

RONALD S. FLAGG
General Counsel
Office of Legal Affairs

  • 1. To the extent that this Opinion conflicts with EX-1999-007 (June 21, 1999), that Opinion is hereby withdrawn.