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Proceedings under the provisions of G.L. c. 123, § 35 in the District Court, Boston Municipal Court, and Juvenile Court Departments shall be commenced by the filing of a written petition, signed under the penalties of perjury, by a police officer, physician, spouse, blood relative, guardian, or court official seeking the issuance of an order of commitment of a person (hereinafter the "respondent") who the petitioner has reason to believe is an individual with an alcohol or substance use disorder, as those terms are defined in G.L. c. 123, § 35. Such a petitioner, including a court official, may petition on behalf of the respondent.
Proceedings may be commenced in any Division of any of the three Departments without regard to the age, residence, or location of the respondent, but the age, residence, or location of the respondent may determine to which Division or Department any warrant or summons will be returnable pursuant to Rule 3.
Following commencement, a petition may not be withdrawn without leave of court.
(2016) General Laws c. 123, § 35 was amended in 2016 by An Act Relative to Civil Commitments for Alcohol and Substance Use Disorders, St. 2016, c. 8, requiring revisions to the Uniform Rules. The Act was effective April 24, 2016.
Among other things, the 2016 legislation deleted the outdated terms “alcoholic” and “substance abuser,” and replaced them with “alcohol use disorder” and “substance use disorder.” St. 2016, c. 8, §§ 1-2, 4. This exemplary change reflects the desirability of removing stigma from persons suffering from these disorders, with the beneficial effects of increasing the willingness of persons to seek treatment for these disorders, both for themselves or for others. All participants in G.L. c. 123, § 35, commitment proceedings should remain focused on the goals of protecting persons suffering from these disorders and the community from the likelihood of serious harm and of providing necessary treatment to such persons.
The 2016 legislation reformatted G.L. c. 123, § 35, most notably by collapsing the first and second paragraphs into one paragraph and by replacing the fourth and fifth paragraphs with three paragraphs (now the third, fourth, and fifth paragraphs). Accordingly, some of the citations in the original commentary are now citing to an incorrect paragraph.
(2015) These rules implement the provisions of G.L. c. 123, § 35, clarifying and facilitating the conduct of the proceedings that the statute requires. Although section 35 appears within chapter 123, Mental Health, its provisions are confined to commitment for alcohol and substance use. The purpose of these rules is to provide a procedural groundwork for the orderly processing of section 35 petitions.
Rule 1(a) regulates the existing practice in the courts of allowing persons to seek their own commitment for substance use treatment. The statute requires that a police officer, physician, spouse, blood relative, guardian, or court official act as petitioner. As a result, a substance user desiring his own commitment will need to obtain the assistance of a statutorily-authorized petitioner. In many courts, a police prosecutor or a probation officer or other court official will be available to serve as petitioner when a substance user seeks the assistance of the court in addressing the addiction. Such a police officer or court official would be expected to determine whether there is a reasonable basis to believe that the substance user meets the statutory requirements for commitment and that voluntary treatment resources are unavailable or inadequate for the substance user's needs. The rule specifically permits this useful procedure.
Section 35 permits a qualified petitioner to initiate a petition in "any district court any division of the juvenile court department." Unlike with harassment prevention orders, see G.L. c. 258E, § 2, section 35 imposes no venue requirements and does not differentiate jurisdiction by the age of the respondent. Accordingly, Rule 1(b) recognizes that there is no basis for denying a petitioner the right to file a petition in the Division or Department of the petitioner's choice. Cf. M.B. v. J.B., 86 Mass. App. Ct. 108, 114-15 (2014) (venue requirements in G.L, c. 209A, § 2 are not jurisdictional and must be raised by the respondent or are waived). A petition for the commitment of a juvenile may be filed in Boston Municipal Court or a District Court, and a petition for the commitment of an adult may be filed in Juvenile Court. Similarly, a petition for commitment may be filed in a Division that is not the usual residence of the respondent. There is no statutory basis for prohibiting a petitioner from a choice of Department and Division and, in light of the usual emergency nature of section 35 petitions, requiring a petitioner to travel to another court could impose unnecessary risks to the safety of the respondent and others. Nonetheless, as provided in Rule 3(d), where the respondent is not present, the court may direct that the case ultimately be adjudicated in a more appropriate location or Department while respecting the petitioner's choice of where to initiate the petition.
Rule 1(c) recognizes that a section 35 proceeding is not an ordinary civil case terminable by the parties at will, but rather an invocation of the court's statutory power to protect the respondent, petitioner, and society at large. For this reason, once the petitioner has filed the petition by signing it and providing it to the court, withdrawal of a petition must be approved by a judge and should not be allowed unless the judge is satisfied that such withdrawal will not jeopardize the safety of the respondent, petitioner, or any other person.
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