Upon the filing of a petition and any sworn statements the court may request from the petitioner at the time of such filing, the case shall be brought expeditiously before a judge who shall review the petition on the record in court. If the judge determines that either (1) the petitioner is statutorily unqualified to file a petition under the provisions of G.L. c. 123, § 35 ; or (2) the petitioner's allegation that the respondent is an individual with an alcohol or substance use disorder has no reasonable basis, the judge shall dismiss the case. Otherwise, if the respondent is present, the court shall immediately proceed in accordance with Rules 4 and 5. If the respondent is not present, the court shall immediately proceed in accordance with Rule 3.

July 22, 2015, effective February 1, 2016; amended July 20, 2016, effective September 6, 2016.

Commentary 

(2015) Rule 2 contemplates that the judge maybe able to determine that a petition lacks merit prior to the issuance of a summons or a warrant. The judge, in the exercise of discretion, may inquire further of a petitioner in malting this preliminary decision. If the petitioner is statutorily unqualified but appears to have a strong case for the respondent's commitment, the judge may choose to refer the petitioner to a qualified petitioner, who would then decide whether to file a new petition for commitment. The absence of the petitioner, because the petitioner is a physician still at a hospital or for any other reason, would not be by itself grounds for dismissing the petition.

The last two sentences of Rule 2 recognize the importance of prompt action when addressing section 35 petitions. When the respondent is present at the time of the petition, the court must proceed expeditiously to the appointment of counsel and no consideration is given to whether a different Division or Department would have been preferable. When the respondent is not present, the court must expeditiously decide whether to issue a summons or a warrant.

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