Case 4:11-cv-00417-WS-CAS Document 1 Filed 08/25/11 Page 1 of 7

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

_________________________

J.R.,

Plaintiff,

v.

Case No.:

MICHAEL HANSEN, in his Official Capacity as Director of the Agency for Persons with Disabilities,

Defendant. _________________________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PRELIMINARY STATEMENT

1. Plaintiff, J.R., brings this action to redress violations of his Due Process rights

guaranteed by the Fourteenth Amendment to the United States Constitution. J.R. is diagnosed with mild mental retardation.1 On October 26, 2004, J.R. was involuntarily

committed to residential services pursuant to Florida’s law governing civil commitment of

persons with developmental disabilities: Section 393.11 of the Florida Statutes. Florida law

does not provide for any type of periodic review for individuals committed pursuant to

Section 393.11 of the Florida Statutes. As a result of this omission, the continued

1 The developmental disabilities community encourages use of the term “intellectual disability” in lieu of “retardation” or “mental retardation.” See R.L. Schalock et al., The Renaming of ‘Mental Retardation:’ Understanding the Change to the term ‘Intellectual Disability,’ 45 Intellectual and Developmental Disabilities 116, 116-24 (2007); see also Pub. Law. 111-256, § 1, Oct. 5, 2010, 124 Stat. 2643 (“Rosa’s Law”). For purposes of consistency, since the state of Florida uses the term “retardation” in law, that term will be used for purposes of this complaint.

Case 4:11-cv-00417-WS-CAS Document 1 Filed 08/25/11 Page 2 of 7
appropriateness of J.R.’s involuntary commitment has never been reviewed by the committing court.
JURISDICTION 2. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331 as this action arises under the Constitution and the laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3) as this action seeks to redress for civil rights violations under 42 U.S.C. §§ 1983 & 1988. 3. This Court has jurisdiction over claims seeking declaratory relief and injunctive relief pursuant to 28 U.S.C. §§ 2201 & 2202.
VENUE 4. Venue is proper in this District under 28 U.S.C. § 1391(b) and N.D. Fla. Loc. R. 3.1 because a substantial number of the events and omissions giving rise to J.R.’s claims occurred in the District.
PARTIES 5. Plaintiff, J.R., a person with mental retardation, has been involuntarily committed to residential services pursuant to Section 393.11 of the Florida Statutes. J.R. has never received any periodic review of his continued need for involuntary confinement to residential services. 6. Defendant, Michael Hansen, is the Director of the Agency for Persons with Disabilities (“APD”). APD is the state agency responsible for all services provided to persons with developmental disabilities under Chapter 393 of the Florida Statutes. Fla. Stat. § 20.197. As the director of APD, Defendant is responsible for the custody and care of all those committed under Section 393.11 of the Florida Statutes, including the adoption and
2

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implementation of any policies related to that commitment. Defendant Hansen is sued in his official capacity for the purposes of declaratory and injunctive relief.
FACTS 7. J.R. is a person with mental retardation. 8. On May 23, 2003, a petition was filed to seek the involuntary commitment of J.R. pursuant to Section 393.11 of the Florida Statutes which governs the involuntary commitment of persons with developmental disabilities in Florida. 9. On October 12, 2004, a hearing was convened in the Twentieth Judicial Circuit in Lee County, Florida to determine whether J.R. was in need of involuntary commitment pursuant to Section 393.11 of the Florida Statutes. 10. Once a person is committed pursuant to the authority of Section 393.11 of the Florida Statutes, the person’s commitment will continue until the court, which retains jurisdiction throughout the commitment, releases the individual from the order. Fla. Stat. § 393.11(11). Thus, the commitment order is of indefinite duration. Id. 11. At the time of the hearing, the court found that:
a. J.R. is a person with mental retardation; b. Placement in a residential setting was the least restrictive and most appropriate alternative to meet J.R.’s treatment and supervision needs; and c. As a result of J.R.’s mental retardation,
i. He lacked sufficient capacity to consent to a voluntary application for services from the state agency responsible for the care of persons with developmental disabilities, and lacked basic survival or self-care skills to such a degree that close supervision and habilitation in a residential setting
3

Case 4:11-cv-00417-WS-CAS Document 1 Filed 08/25/11 Page 4 of 7
was necessary and, if not provided, could have resulted in a threat of
substantial harm to his well-being; or
ii. J.R. was likely to physically injure himself or others if allowed to remain
at liberty. 12. Based on the court’s findings at the October 12th hearing, on October 26, 2004,
the court ordered J.R. into the custody and care of the Department of Children and Families (“DCF”) and required J.R. to live in residential services pursuant to Section 393.11 of the
Florida Statutes. Due to the reorganization of DCF, J.R. is currently committed to the custody and control of the APD. 2
13. Since 2005, in compliance with his commitment order, J.R. has and continues to
reside at various residential settings in Florida.
14. Currently, J.R. resides at Positive Images Group Home in Gainesville, Florida.
15. If J.R. attempts to move out of the group home into an independent living
arrangement of his choice, then he will violate the commitment order.
16. Section 393.11of the Florida Statutes does not provide for any type of periodic review for individuals involuntarily committed pursuant to its authority.3
2 All responsibilities under DCF’s developmental services program, including persons committed pursuant to Section 393.11 of the Florida Statutes were transferred to APD when the Florida legislature created APD in 2004. See generally, The Florida Legislature’s Office of Program Policy Analysis and Government Accountability, The Department of Children and Families and the Agency for Persons with Disabilities Have Improved Their Working Relationship, but Several Problems Remain, October 12, 2009; see also Fla. Stat. § 20.197. Thus, upon the transfer of responsibilities, Defendant inherited the responsibility for the custody and care of J.R. while J.R. is under the authority of the commitment order. Id. 3 Florida’s parallel civil commitment statute for persons with mental illness requires that individuals who have been involuntarily committed to inpatient or outpatient mental health services receive adversarial reviews, at a minimum, every 6 months by an administrative hearing officer. Fla. Stat. §§ 394.4655(6)(b)(1) & (7) and 393.467(7). Thus, the state of Florida has
4

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17. In the seven years that J.R. has been committed, the committing court has not reviewed the commitment order for its continued appropriateness.
18. Periodic review of J.R.’s involuntary commitment order would be used to determine if the basis for J.R.’s continued commitment continues to exist.
19. Although J.R.’s mental retardation will always exist, his potential for dangerousness or harm to self or others can change.
20. Additionally, J.R. can develop skills that mitigate the effect of his disability and aid him in his ability to live independently.
21. J.R.’s commitment order does not contain a definite end date, and J.R. will continue to live under its demands until the committing court determines that it is no longer necessary. See Section 393.11(11), Fla. Stat.
CLAIM FOR RELIEF – VIOLATION OF DUE PROCESS CLAUSE 22. At all times herein, Defendant acted under the color of state law. 23. Involuntary civil commitment pursuant to Section 393.11 of the Florida Statutes is a deprivation of a constitutionally protected liberty interest, and as such, implicates Due Process protections guaranteed by the Fourteenth Amendment to the United States Constitution. 24. Due Process requires that, as a result of J.R.’s involuntary commitment under Section 393.11 of the Florida Statutes, he receive state-initiated periodic, judicial review of his commitment order.
identified value and interest in providing a periodic adversarial review process to individuals with mental illness who are involuntarily committed.
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25. Due to the failure of Florida state law to provide for periodic review of involuntary commitment orders issued pursuant to Section 393.11 of the Florida Statutes, J.R.’s rights protected by the Due Process Clause have and continue to be violated.
26. J.R. has no adequate remedy at law. 27. J.R. also seeks attorney’s fees and costs pursuant to 42 U.S.C. § 1988, which authorizes the award of attorney’s fees and costs to prevailing Plaintiffs in actions brought pursuant to 42 U.S.C. § 1983.
REQUEST FOR RELIEF WHEREFORE, J.R. respectfully requests that this Court:
1. Issue a declaratory judgment pursuant to 28 U.S.C. § 2201, declaring that failure to provide state-initiated periodic, judicial review of involuntary commitment orders issued pursuant to Section 393.11 of the Florida Statutes violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In addition, declare that the stateinitiated periodic, judicial review shall incorporate the following procedures in order to comport with the Due Process Clause:
a. Notification of right to counsel and appointment of counsel if indigent; and b. Review conducted by a neutral and detached decision-maker who possesses
the authority to afford relief if such grounds exist. 2. Issue a permanent injunction that requires Defendant to adopt policies and procedures to ensure that clients, like J.R., who are committed to Defendant’s care and custody pursuant to Section 393.11 of the Florida Statutes, receive state-initiated periodic, judicial review of the involuntary commitment. 3. Award Plaintiff reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
6

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4. Grant such other and further relief as this Court deems just and proper.

Dated: August 25, 2011

RESPECTFULLY SUBMITTED,
/s/ Katherine DeBriere Katherine DeBriere Fla. Bar No.: 58506
Peter Sleasman Fla. Bar No.: 367931
Florida Institutional Legal Services, Inc. 14260 W. Newberry Rd., Ste. #412 Newberry, FL 32669-2765 (352) 375-2494 (telephone) (352) 331-5202 (facsimile) kdebriere@filsinc.org psleasman@filsinc.org
ATTORNEYS FOR PLAINTIFF

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 Case 4:11-cv-00417-WS-CAS Document 29 Filed 12/19/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

Page 1 of 2

J.R.,
Plaintiff,
v.
MICHAEL HANSEN, in his Official Capacity as Director of the Agency for Persons with Disabilities,
Defendant.

4:11cv417-WS

ORDER DENYING DEFENDANT'S MOTION TO DISMISS Before the court is the defendant's motion to dismiss for failure to state a claim. Doc. 10. The plaintiff has filed a response (doc. 12) in opposition to the motion. Briefly, the plaintiff has alleged that, in 2004, his mental retardation resulted in his being involuntarily and indefinitely committed to the defendant's custody pursuant to Florida's law—Florida Statute § 393.11—governing the civil commitment of persons with developmental disabilities. Under section 393.11, a person's commitment continues until the court, which retains jurisdiction throughout the commitment, releases the individual from the order of commitment. The Plaintiff alleges that, since his commitment, the court has not once reviewed the commitment order for its continued appropriateness. The plaintiff maintains that his continued commitment, without periodic state-initiated review of its appropriateness, constitutes a violation of his due

Case 4:11-cv-00417-WS-CAS Document 29 Filed 12/19/11 Page 2 of 2

process rights.

Page 2 of 2

Because the court finds that the plaintiff's allegations are sufficient to survive the

defendant's motion to dismiss, it is ORDERED:

The defendant's motion to dismiss (doc. 10) is DENIED.

DONE AND ORDERED this 19th day of December , 2011.

s/ William Stafford WILLIAM STAFFORD SENIOR UNITED STATES DISTRICT JUDGE

 
 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

Page 1 of 26

J.R.,
Plaintiff,
v.
MICHAEL HANSEN, in his Official Capacity as Director of the Agency for Persons with Disabilities,
Defendant.

4:11cv417-WS

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT The plaintiff in this case mounts a constitutional challenge to a Florida statute,
section 393.11, that sets forth the state's scheme for involuntarily admitting mentally retarded persons to residential services provided by the Agency for Persons with Disabilities ("APD"). The plaintiff contends that the statute violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Before the court at this time are the parties' cross-motions for summary judgment (docs. 41 & 44) and their respective responses (docs. 46 & 47) thereto. The parties have been advised (doc. 63) that the motions would be taken under consideration as of a date certain. Because the court concludes that section 393.11 comports with the constitutional requirements of due process, the court grants the defendant's and denies the plaintiff's motion for summary judgment.

I. SECTION 393.11

Page 2 of 26

Chapter 393 of the Florida statutes, entitled "Developmental Disabilities," governs

the treatment and services provided for persons with developmental disabilities,

including mental retardation. In enacting Chapter 393, the Florida Legislature

recognized that community-based services, as opposed to institutional placements,

would "enable individuals with developmental disabilities to achieve their greatest

potential for independent and productive living, enable them to live in their own homes

or in residences located in their own communities, and permit them to be diverted or

removed from unnecessary institutional placements." Accordingly, the Legislature

declared that, "in developing community-based programs and services for individuals

with developmental disabilities, private businesses, non-for profit corporations, units of

local government, and other organizations capable of providing needed services to

clients in a cost-efficient manner shall be given preference in lieu of operation of

programs directly by state agencies. Id. at § 393.062.

Section 393.11 provides that "[w]hen a person is mentally retarded and requires

involuntary admission to residential services provided by the agency, the circuit court of

the county in which the person resides shall have jurisdiction to conduct a hearing and

enter an order involuntarily admitting the person in order that the person may receive

the care, treatment, habilitation, and rehabilitation which the person needs." Fla. Stat. §

393.11(1). If, as in this case, criminal charges are dismissed against a defendant found

to be incompetent due to mental retardation, involuntary admission to residential

services can be initiated by petition or motion filed by APD, the state attorney, or by

counsel for the person needing services. § 916.303(2).

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Upon receiving such a petition or motion, the circuit court must appoint an examining committee comprised of "no fewer than three disinterested experts who have demonstrated to the court an expertise in the diagnosis, evaluation, and treatment of persons with mental retardation." § 393.11(5)(b). After examining the person being considered for involuntary admission, the committee must file a written report with the court, explicitly documenting the extent to which the person meets the criteria for involuntary admission. § 393.11(5)(e). Once the committee's written report is filed, a hearing for involuntary admission is conducted. § 393.11(7). The person with mental retardation is entitled to be represented by counsel at "all stages of the judicial proceeding." § 393.11(6)(a). "If the attorney, during the course of his or her representation, reasonably believes that the person with mental retardation cannot adequately act in his or her own interest, the attorney may seek the appointment of a guardian ad litem." § 393.11(6)(b).
An order of involuntary admission to residential services may be entered provided the circuit court finds that:
1. The person is mentally retarded . . . ; 2. Placement in a residential setting is the least restrictive and most appropriate alternative to meet the person's needs; and 3. Because of the person's degree of mental retardation . . . , the person: a. Lacks sufficient capacity to give express and informed consent to a voluntary application for services pursuant to s. 393.065 and lacks basic survival and self-care skills to such a degree that close supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person's well-being; or b. Is likely to physically injure others if allowed to remain at liberty.

§393.11(8)(b) (emphasis added).

Page 4 of 26

Within 45 days of its receipt of an order admitting a person, or "client," to

residential services, APD must provide the circuit court with a copy of a "support plan"

outlining the treatment and rehabilitative programs prescribed for the client and

documenting that the client "has been placed in the most appropriate, least restrictive

and cost-beneficial residential setting." § 393.11(8)(e). "The client, if competent, the

client's parent or guardian, or, when appropriate, the client advocate,"1 must be

consulted in the development of the support plan. § 393.0651. "The ultimate goal of

each plan, whenever possible, shall be to enable the client to live a dignified life in the

least restrictive setting, be that in the home or in the community." Id.

When deciding the appropriate placement for a client, APD must consider

placements in the following order:

(a) Client's own home or the home of a family member or direct service provider.

(b) Foster care facility.

(c) Group home facility.

(d) Intermediate care facility for the developmentally disabled.

(e) Other facilities licensed by the agency which offer special programs for people with developmental disabilities.

(f) Developmental disabilities center.

1 A client advocate may be appointed by the support planning team for a client who is a minor or for a client who is not capable of express and informed consent when: (a) the parent or guardian cannot be identified; (b) the whereabouts of the parent or guardian cannot be discovered; or (c) the state is the only legal representative of the client. § 393.0651(4).

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§ 393.0651(5).2 The client (or client advocate) and the administrator of the facility to which placement is proposed must be consulted in determining the appropriate placement. § 393.0651(5).
Support plans are required to be revised annually, following review of a client's progress in achieving the objectives set forth in his or her plan. § 393.0651(7). The client (or client advocate) must be consulted during the annual review and revision of the support plan. Id. Like the initial support plan, each revised plan must include "the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives for client progress." § 393.0651.
The circuit court that issues the initial order for involuntary admission to residential services "shall have continuing jurisdiction to enter further orders to ensure that the person is receiving adequate care, treatment, habilitation, and rehabilitation, including psychotropic medication and behavioral programming." § 393.11(11). Upon request, the admitting court may transfer the continuing jurisdiction to the court where a client resides if that place is different from where the original involuntary admission order was issued. Id. Only the circuit court has the authority to release a person from an order for involuntary admission to residential services. Id.
2 A "foster care facility" means a residential facility licensed under chapter 393 which provides a family living environment including supervision, the capacity of which may not be more than three residents. § 393.063(15). A "group home facility" means a residential facility licensed under chapter 393 which provides a family living environment including supervision, the capacity of which shall be at least 4 but not more than 15 residents. § 393.063(16). An "intermediate care facility for the developmentally disabled" means a residential facility licensed and certified pursuant to part VIII of chapter 400. § 393.063(20). A "developmental disabilities center" means a stateowned and state-operated facility (once known as a "Sunland Center"). § 393.063(10).

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If a developmentally disabled defendant in a criminal case is found to need involuntary residential services but "there is a substantial likelihood that the defendant will injure another person or continues to present a danger of escape," and if services in community residential facilities or other community settings are judged to be inappropriate for that defendant, the committing court may continue the defendant's placement in a secure facility in lieu of admission to non-secure residential services. § 916.303(3). Any secure placement so continued must be reviewed by the court at least annually at a hearing. Id.
Unlike section 916.303(3), section 393.11 does not provide for periodic judicial review of persons involuntarily admitted to non-secure residential services. The admitted person may, however, file a petition for a writ of habeas corpus at any time and without notice "to question the cause, legality, and appropriateness of the person's involuntary admission." § 393.11(13). The admitted person (or client advocate) may also challenge his or her support plan through Florida's administrative hearing process. § 393.0651(8). An administrative hearing officer may not, however, amend or rescind the circuit court's order involuntarily assigning the individual to residential services.
II. BACKGROUND FACTS The plaintiff ("J.R.") is a retarded 48-year-old male who reportedly has obsessive compulsive and psychotic symptoms. Born in Tampa, Florida, he and his family relocated to the Fort Myers area when he was a child. His parents are now deceased, but he still has siblings and other family members in the Fort Myers area. After leaving his parents' home at the age of 16, J.R. reportedly worked as a migrant farm laborer and dishwasher at times. He can read simple sentences but has

Page 7 of 26
poor written skills. He functions at a 7 year, 1 month level on the Vineland Adaptive Behavior Scale and has a reported IQ of 56 (last tested on March 29, 2001).
In 2000, J.R. was charged in Lee County, Florida, with sexual battery. In 2001, after finding J.R. incompetent to stand trial, the Lee County Circuit Court involuntarily committed J.R. to the custody of the Department of Children and Family Services ("DCF") for treatment in DCF's Mentally Retarded Defendant Program. In 2004, lacking evidence to suggest that J.R. would ever become competent to stand trial, the circuit court dismissed the criminal charges against J.R. and—upon motion filed by J.R.'s attorney—ordered J.R. admitted to "secure" residential services pursuant to section 393.11. After learning that DCF recommended a non-secure rather than a secure placement, the circuit court later changed its order, involuntarily admitting J.R. to "nonsecure" rather than "secure" residential services. Without specifying any particular type of residential setting, the court explained that the purpose of the ordered residential care was to provide J.R. with vocational and social skills training.
J.R. has resided in the Positive Images Group Home ("PIGH") in Gainesville, Florida, since he left DCF's custody in or about 2007.3 PIGH is a behavior focused group home, whose staff members are specially trained to work with individuals who display extreme and/or violent behaviors. As required for all residents at a behavior focused group home, a Certified Behavior Analyst ("CBA") was assigned to J.R. when he arrived at PIGH. J.R.'s CBA, Gregory Jansen ("Jansen"), is—and has been since 2007—responsible for assessing J.R.'s behavior and developing a behavior plan ("BP")
3 Gainesville is in Alachua County, Florida, which is in a different state judicial circuit from Lee County.

based on that assessment.

Page 8 of 26

At PIGH, residents may be supervised 24 hours a day, 7 days a week.

According to Jansen, APD assesses on a semi-annual basis whether a resident's

behaviors necessitate the level of training and supervision provided in a behavior

focused group home. In 2007, an APD placement coordinator identified PIGH as the

"only appropriate community placement available throughout the state" for someone

with J.R.'s behavioral history.

The BP initially devised by Jansen placed significant restrictions on J.R's

movements. The initial restrictions resulted, in part, from behaviors exhibited by J.R.

when he first arrived at PIGH, including inappropriate touching of group home female

staff and physical/verbal aggression towards staff members. In the years since 2007,

as J.R.'s needs and behaviors have changed for the better, Jansen has repeatedly

modified J.R.'s BP to reduce the restrictions imposed. J.R. must nonetheless comply

with a number of group home rules and regulations, which include a curfew, a ban on

alcohol consumption, and certain limitations on his freedom of movement.

Jordan Goldstein ("Goldstein") has been J.R.'s support coordinator since 2007.

As defined in section 393.063, a "support coordinator" means:

a person who is designated by [APD] to assist individuals and families in identifying their capacities, needs, and resources, as well as finding and gaining access to necessary supports and services; coordinating the delivery of supports and services; advocating on behalf of the individual and family; maintaining relevant records; and monitoring and evaluating the delivery of support and services to determine the extent to which they meet the needs and expectations identified by the individual, family, and others who participated in the development of the support plan.

§ 393.063(36). J.R.'s most recent support plan, dated February 1, 2012, was written by

Page 9 of 26
Goldstein. Among those who participated in the development of that support plan were
Goldstein, J.R., CBA Jansen, and attorney Katherine DeBriere ("DeBriere"), J.R.'s
counsel in this case.
The opening statement of J.R.'s 2012 support plan reveals that "[J.R.] would like
to move back to the Fort Myers area where his family lives." As reported by Goldstein,
CBA Jansen recently submitted an updated BP in which he stated:
The low frequency and intensity of [J.R.'s] behaviors and his ability to stay out of trouble with limited and covert supervision indicate that he would be able to maintain in a less restrictive setting such as Residential Habilitation group home as opposed to Behavior Focused (BF) group home he is currently residing at.
Doc. 41, Ex. 9, p.2. Jansen recommended that J.R. be transitioned "to this less
restrictive setting in his hometown whenever such an opportunity becomes available."
Noting that APD's local review committee ("LRC") had approved Jansen's
recommendation, Goldstein concluded his 2012 support plan as follows:
[J.R.'s] expressed desire is to live in the community independently and return to the Fort Myers to be near his family. [J.R.'s] SP [support plan] goals are in place to assist him in learning replacement behaviors consistent with his [BP] goals and his court ordered non secure residential placement at PIGH. During the past year [J.R.] has demonstrated he is making progress towards his [BP] goals. He has earned freedom of movement and has maintained a job for over a year with no reported inappropriate behaviors or incidents with the oversight of an SE coach. He reportedly is an excellent worker and has been offered relocation job opportunities [with] Steak and Shake in the Fort Myers area where [J.R.] desires to move to someday. [J.R.'s] civil court case remains open in Lee county. [J.R.] has legal representation to assist him in petitioning the court to allow him to return to the Fort Meyers area into a [less restrictive environment]. In the meantime [J.R.] is aware of his need to continue to make progress towards successfully completing his [BP] treatment goals and increasing his freedom of movement as a necessary step in promoting his independence. His [BP] has been recently updated and approved by the LRC with the understanding that it will be submitted to the Court for review and a determination if he is to be reclassified by APD into

Page 10 of 26
a less supervised more independent residential setting. Pending further court review of his progress, [J.R.] will continue in his behavior focus [group home] placement at the PIGH. Doc. 41, Ex. 9, p. 5-6. According to both Goldstein and Jansen, J.R. is not free to simply move out of the group home where he currently lives. If he were to "elope," the police would probably be called to return him to PIGH. Moreover, any refusal on J.R.'s part to comply with his BP or the group home rules could result in his losing the freedoms he has so far gained. With a serious violation of rules, he could be subjected to greater supervision and/or a more restrictive placement. Charles Ball, APD's Deputy Director of Budget and Planning, asserts that, when a section 393.11 client refuses residential services "by not showing up and not following the rules of the facility," the agency will file a notice, advising the circuit court that the individual is refusing services. Ball described a recent instance involving a man—not J.R.—who repetitively eloped from his group home. After the agency notified the circuit court that the man was refusing services, the man was returned to court and there given what Ball characterized as a "management lesson" by the judge. The man thereafter "substantially increased" his compliance with his residential services order. Ball explained that an order under section 393.11 requires performance not only by the person admitted to residential services but also by the agency that must provide those services. Without a release from the court, the agency cannot simply stop providing required services. If, based on the noncompliance of the client, the agency is not capable of performing its obligations under the court's admission order, then—according to Ball—the agency must be "proactive" in notifying—and seeking

further instruction from—the court.

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While explaining that APD would need a release from the court before it could

stop providing services altogether, Ball emphasized that the exact effect of an order

under section 393.11 can be "substantially altered" over time. That is, a person might

be placed in the most restrictive setting initially but over time be graduated down to a

very unrestricted setting, such as a foster home or an independent living setting. In

Ball's words: "So while [APD] cannot invalidate an order of the court, . . . the fact would

be that the effect of the order would be appreciably diminished as long as the person's

care plan was being carried out appropriately and their needs were being met."

The 2004 order entered by the Lee County Circuit Court involuntarily admitting

J.R. to residential services did not specify or in any way limit the residential setting

wherein J.R. is to receive those services. The order simply states that J.R. is to be

"involuntarily admitted to NON-SECURE residential services." Doc. 44, Ex. 4 (emphasis

in original). Nonetheless, when Goldstein contacted Kerry Kahn, an APD employee

who coordinates residential placements in the Fort Myers area, he (Goldstein) was

told—incorrectly—that the "committing court" would have to approve a change in J.R.'s

living arrangements before J.R. could move to Fort Myers. Goldstein received a similar

response from the office of Genie Rehak, DCF Assistant Regional Legal Counsel.4

In 2010, having been unsuccessful with his efforts—efforts begun in March of

4 Rehak's response was based, in part, on her communications with APD Supervising Attorney Julie Waldman. By email to Rehak dated November 2, 2010, Waldman explained (without having seen the circuit court's order): "APD's position is that [J.R.] continues to need services and we are not filing petitions to change orders. If he wants to change it, he will have to . . . pursue that. He seems to be able to know who to contact for assistance."

Page 12 of 26
2008—to get APD to move J.R. to Fort Myers, Goldstein began contacting law offices,
asking if they would assist with J.R.'s case. After talking with public defenders in both
Fort Myers and Alachua County, a legal aid office in Fort Myers, and Three Rivers Legal
Services, Inc., all to no avail, Goldstein contacted Florida Institutional Legal Services, Inc. ("FILS"), a non-profit law office located in Newberry, Florida.5 FILS attorney
DeBriere agreed to help J.R., not by filing a petition with the Lee County Circuit Court
seeking permission to move J.R. to a less restricted setting, not by filing a state court
habeas corpus action on J.R.'s behalf, but instead by filing this federal declaratory
judgment action, challenging the constitutionality of the statute invoked when J.R. was
involuntarily assigned to residential services. In her response to the defendant's motion
for summary judgment, DeBriere explained:
The reason current counsel took J.R.'s case was because FILS is a non-profit law office whose mission is to provide representation on cases that have the potential to impact more than just one person. J.R.'s counsel has not filed a petition for habeas corpus because it agreed to file a federal lawsuit. Unlike a petition for habeas corpus, this lawsuit fulfills FILS mission of providing the greatest potential impact for the largest number of people, namely all persons who are subject to involuntary commitment orders under § 393.11.
Doc. 46, p. 10. Neither J.R. himself or anyone on his behalf has ever filed an
administrative action challenging J.R.'s support plan or a habeas corpus action
challenging his continued involuntary admission to residential services.
Attorney DeBrier filed this lawsuit on behalf of J.R. on August 25, 2011. She
contends that section 393.11 violates due process because it does not require state-
5 By declaration, doc. 46-1, Goldstein stated: "In my experience, the people I serve as a support coordinator are not commonly able to obtain legal counsel. The difficulty I experienced in trying to find counsel for J.R. supports this conclusion."

Page 13 of 26
initiated periodic judicial review of J.R.'s involuntary admission to residential services. She seeks declaratory and injunctive relief as well as attorney's fees and costs.6
III. ANALYSIS J.R. contends that the procedures set forth in section 393.11 for continuing review of his involuntary admission to residential services are not adequate to shield him from the risk of an erroneous deprivation of his interest in being released from confinement. J.R. suggests that, to comport with due process, the statute should require (1) state-initiated periodic judicial review by the entity—the circuit court—having sole jurisdiction to release an individual from an order entered pursuant to section 393.11; and (2) notification to the individual of his or her right to counsel and appointment of counsel if indigence is established. According to J.R. the law as currently written falls short of constitutional standards because it places the burden on developmentally disabled persons to seek review of an admission order by petition for habeas corpus. The court is not convinced. The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that a state shall not "deprive any person of life, liberty, or property, without due process of law." When a plaintiff asserts a denial of procedural due process, he must prove three elements: (1) a deprivation of a constitutionallyprotected liberty or property interest; (2) state action; and (3) constitutionally-inadequate
6 DeBriere recently advised this court that APD has provided a residential referral packet to J.R., listing five group homes in or around Fort Myers, including three group homes that provide standard residential habilitation services. Doc. 57. J.R. has since moved to a group home that provides standard residential habilitation services in Port Charlotte, Florida, approximately thirty miles from Fort Myers, Florida. J.R. has also chosen a new support coordinator who lives in the Fort Myers area. Doc. 61.

process. Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).

Page 14 of 26

The United States Supreme Court has repeatedly recognized that "civil

commitment for any purpose constitutes a significant deprivation of liberty that requires

due process protection." Addington v. Texas, 441 U.S. 418, 425 (1979) (citing cases).

On its face, section 393.11 makes involuntary admission to residential services

appropriate only (1) when "close supervision and habilitation in a residential setting" is

needed to prevent a threat of substantial harm to a person lacking in basic survival and

self-care skills, or (2) when a person "is likely to physically injure others if allowed to

remain at liberty." § 393.11(8)(b). By its plain language, the statute makes loss of

liberty a necessary concomitant to involuntary admission to residential services. See

Kinner v. State, 382 So. 2d 756, 760 (Fla. 2d DCA 1980) (recognizing that admission to

services under section 393.11 constitutes a deprivation of liberty), rev'd on other

grounds, 398 So. 2d 1360 (Fla. 1981). J.R.'s case is no exception. Indeed, the record

amply demonstrates that J.R.'s involuntary assignment to a Gainesville-based behavior

focused group home has resulted in a loss of J.R.'s liberty for due process purposes.7

The first element of J.R.'s due process claim has been easily proved.

The second element—state action—has been easily proved as well. Not only is

an order by a state circuit court required before a person may be involuntarily admitted

to residential services under section 393.11, but also a state agency—APD—is

7 APD makes much of the fact that J.R. was not "committed" to a state institution but was, instead, "assigned" to community-based residential services. While the distinction may affect the degree of infringement, it does not alter the fact that J.R.'s liberty has been infringed by his involuntary assignment to a group home in a community where he does not choose to live.

Page 15 of 26
responsible for providing the person so admitted with "the most appropriate level of care" in "the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives for client progress." § 393.0651.
In deciding whether the third element—constitutionally-inadequate process—has been proved, the court must first determine what process is due to ensure that the state does not improperly curtail the liberty interests of persons, like J.R., who are involuntarily admitted to residential services. The Supreme Court has long and often said that " 'due process is flexible and calls for such procedural protections as the particular situation demands.' " Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 12 (1979) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). In other words, "[w]hat process is constitutionally due cannot be divorced from the nature of the ultimate decision that is being made." Parham v. J.R., 442 U.S. 584, 608 (1979).
Here, J.R. does not challenge the process used in the first instance to involuntarily admit persons to residential services pursuant to section 393.11. Instead, he contends that the statute fails to provide a constitutionally-adequate procedure for reviewing the continued appropriateness, or lack thereof, of the confinements involuntarily imposed under the statute's authority.
It is well established that persons must be released from involuntary confinement once the grounds for initial confinement cease to exist. See, e.g., O'Connor v. Donaldson, 422 U.S. 563, 574-75 (1975) (explaining that, "even if [the plaintiff's] involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed"); Jackson v. Indiana, 406 U.S. 715, 738 (1972)

Page 16 of 26
(noting that "due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed"). To ensure release when release is merited, a number of courts have suggested that some form of post-commitment periodic review is required. See, e.g., Parham, 442 U.S. at 607 (noting that a person's continuing need for commitment must be reviewed periodically by a neutral factfinder); Clark v. Cohen, 794 F.2d 79, 86 (3rd Cir. 1986) (noting that due process requires periodic reviews of a patient's continuing need for institutionalization by a hearing tribunal having the authority to afford relief). What form that periodic review takes may vary. Compare Wyatt v. King, 773 F. Supp. 1508, 1516 (M.D. Ala. 1991) (concluding that mentally ill patients involuntarily committed to state institutions are entitled to periodic judicial post-commitment review), with Williams v. Wallis, 734 F.2d 1434, 1439 (11th Cir. 1984) (concluding that periodic nonadversarial review by medical professionals satisfies due process where such professionals have the authority to release insanity acquittees if and when they are found fit for release).
In Williams, the Eleventh Circuit considered a due process challenge to Alabama's procedures for the release of patients committed to the state's mental health system after being acquitted of a criminal offense only by reason of insanity. Every person so committed to an Alabama mental hospital is assigned a treatment team (consisting of a psychiatrist, a psychologist, a physician, a nurse, a social worker, and other support personnel) that periodically (every 60-90 days) reviews the acquitee's progress toward the treatment goal of transfer to a less restrictive environment and eventual release. The treatment team typically initiates the decision to release an insanity acquitee. The final decision regarding release is made by the hospital

Page 17 of 26
superintendent. While there is no formal policy allowing Alabama insanity acquittees to
seek judicial review of a hospital's release decisions, Alabama law provides that
persons confined as insane may seek release by filing a writ of habeas corpus. In the
habeas proceeding, the patient must prove by a preponderance of the evidence that he
or she is no longer mentally ill and dangerous. The Eleventh Circuit concluded that
Alabama's release procedures satisfied due process.
In rejecting the plaintiff's argument that periodic adversary proceedings, rather
than periodic medical reviews, were required for due process purposes, the Williams
court explained that, if an adversarial atmosphere were imposed upon Alabama's
release procedures, it would likely undermine rather than aid the hospital's beneficial
goal of finding the least restrictive environment, leading to ultimate release, for the
committed insanity acquittees. Unconvinced that Alabama's nonadversary release
procedures create an undue risk of erroneous deprivation of an insanity acquitee's
liberty interests, the Eleventh Circuit wrote:
Hospitals and their medical professionals certainly have no bias against the patient or against release. Therefore, we can safely assume they are disinterested decision-makers. In fact, the mental health system's institutional goal—i.e., transfer to a less restrictive environment and eventual release—favors release. Other factors also favor release, including a perennial lack of space and financial resources, which militates against any motivation to unnecessarily prolong hospitalization, and including the medical professional's pride in his own treatment. The frequency of the evaluations also reduces the risk that the patient will be confined any longer than necessary.
Id. at 1438.
In Parham, the Supreme Court reviewed a Georgia law permitting a parent or
guardian to seek state-administered institutional mental health care for a minor child.

Page 18 of 26
The Georgia law gives the state's regional mental hospitals the authority to admit a
minor child if, after observation, the hospital finds "evidence of mental illness" and
determines that the child is "suitable for treatment" in the hospital. Against a due
process challenge, the Court upheld Georgia's nonadversarial procedures for admitting
a child to a state mental hospital for treatment. In the Court's words:
Due process has never been thought to require that the neutral and detached trier of fact be law trained or a judicial or administrative officer. . . . Surely, this is the case as to medical decisions, for neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments. Thus, a staff physician will suffice, so long as he or she is free to evaluate independently the child's mental and emotional condition and need for treatment.
It is not necessary that the deciding physician conduct a formal or quasi-formal, hearing. A state is free to require such a hearing, but due process is not violated by use of informal traditional medical investigative techniques. . . . The mode and procedure of medical diagnostic procedures is not the business of judges. What is best for a child is an individual medical decision that must be left to the judgment of physicians in each case. We do no more than emphasize that the decision should represent an independent judgment of what the child requires and that all sources of information that are traditionally relied on by physicians and behavioral specialists should be consulted.
. . . .
Although we acknowledge the fallibility of medical and psychiatric diagnosis, we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the

commitment and treatment of mental and emotional illness may well be more illusory than real.

Page 19 of 26

Parham, 442 U.S. at 607-609 (internal quotation marks and citations omitted); see also

Hickey v. Morris, 722 F.2d 543, 549 (9th Cir. 1983) (holding that periodic review of an

insanity acquittee's mental health by health professionals, rather than a court,

adequately protects the insanity acquittee's interest in regular review of his or her

continued confinement).

In deciding that the challenged procedures satisfied due process, the Supreme

Court in Parham and the circuit courts in Williams and Hickey applied the balancing test

articulated in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The Mathews Court held

that, when determining what procedures are required to minimize the risk of error when

liberty interests are at stake, a court must balance three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335. Applying the Mathews test here, this court concludes that Florida's

procedures for the review and release of individuals admitted to residential services

pursuant to section 393.11 satisfy due process.

Unlike the plaintiffs in Parham, Williams, and Hickey, J.R. has not experienced

the very intrusive confinements of a state mental institution. He nonetheless has a

strong interest in avoiding confinement as an admittee to non-secure community-based

residential services. Stronger, however, is the state's interest in protecting the

Page 20 of 26
community from a man who was charged with committing a sexual battery on a developmentally disabled woman, whose mental retardation made him unable to proceed to trial on that charge, and who—through his past conduct—has demonstrated that he needs behavioral, vocational, and social skills training to allow him to safely function in society.8
To balance these competing interests, the Florida Legislature enacted section 393.11, thereby fashioning a flexible alternative to existing state programs for the treatment of individuals with developmental disabilities, programs "which often unnecessarily place clients in institutions, are unreasonably costly, are ineffective in bringing the individual client to his or her maximum potential, and are in fact debilitating to many clients." Fla. Stat. § 393.062. Under section 393.11, APD is charged with the continuing responsibility to see that all persons admitted to residential services are placed "in the most appropriate, least restrictive, and most cost-beneficial residential setting" for accomplishment of the objectives for client progress. There is a wide range of possible residential settings, from more intrusive to less intrusive, ranging from a state-operated institution to locally-operated group homes to family and/or client residences. If, at any time, the behavioral specialists determine that a client is ready for a more appropriate and less restrictive residential setting, APD has an affirmative duty to effect—with the client's input—an appropriate change in placement. Semi-annual review by a CBA and annual review by a support team help to insure that clients are not left in settings that are more restrictive than necessary.
8 In its order admitting J.R. to residential services, the court stated that "the purpose to be served by residential care is vocational training and social skills training."

Page 21 of 26
For developmentally disabled defendants who are continued in a secure facility pursuant to section 916.303(3), in lieu of placement in a non-secure setting pursuant to section 933.11, the Florida Legislature determined that court review is required "at least annually at a hearing." In contrast, the Legislature deliberately chose not to require periodic judicial review of APD's decisionmaking pursuant to section 933.11, instead requiring nonadversarial annual review and revision of each client's support plan by at least one specialist knowledgeable about the appropriateness of any particular placement for any particular client. There is nothing in this record to suggest that the specialists would have a bias against the clients. In fact, the support coordinator who is responsible for annually reviewing and revising a client's support plan is a person designated by APD to "advocat[e] on behalf of the individual." § 393.063(36).
As recognized by the Supreme Court, "[n]ot every determination by state officers can be made most effectively by use of the procedural tools of judicial or administrative decision-making." Parham, 442 U.S. at 608 (internal quotation marks and citation omitted). Indeed, it is doubtful that a nonspecialist judge or administrative hearing officer would be as well equipped as a behavioral specialist to determine what is the "most appropriate, least restrictive, and most cost-beneficial residential setting" for any particular client. Here, given Florida's carefully-devised scheme for involuntarily admitting developmentally disabled persons to a flexible array of residential placements and services, the added requirement of state-initiated periodic judicial review of every client's case—with lawyers involved—would likely add a cumbersome and costly step that would hinder rather than aid the state's goal of getting each client into the most appropriate and least restrictive environment in a timely manner. See Parham, 442

Page 22 of 26
U.S. at 608 n.16 (noting that "[t]he judicial model for factfinding for all constitutionally protected interests, regardless of nature, can turn rational decisionmaking into an unmanageable enterprise").
The Lee County Circuit Court's order in this case did not specify any particular residential setting for J.R., leaving APD with the decision as to "the most appropriate, least restrictive and cost-beneficial residential setting" for J.R.'s particular needs. The order also placed no restrictions on APD's ability to move J.R. from one setting to another as J.R.'s conduct and needs changed. Consistent with the court's order, and based on the relevant examinations, evaluations, and recommendations, APD initially placed J.R. in a behavior focused group providing 24-hour-7-day-a-week supervision. Since his initial admission to that home, J.R.'s behavior has been closely monitored by a certified behavior analyst and a support coordinator, both of whom are required to review J.R.'s progress on a periodic basis. J.R.'s support coordinator is required to revise J.R.'s support plan annually, after review and consultation with J.R. and other support plan participants, including J.R.'s CBA. According to CBA Jansen, APD assesses on a semi-annual basis whether the frequency and/or intensity of an client's behaviors necessitates the level of training and supervision provided in a behavior focused group home. Based on J.R.'s compliance with his BP, Jansen recently recommended that J.R. be moved to a regular "residential habilitation" group home that does not provide an intensive level of treatment or supervision. Jansen's recommendation was accepted by J.R.'s support coordinator, was approved by APD's local review committee, and was acted upon—perhaps more slowly than necessary—by APD. J.R. has now moved to a less restrictive group home environment closer to his

family, where he continues to receive services as needed.

Page 23 of 26

While APD has the authority—indeed, duty—to move a section 393.11 client

from a more restrictive to a less restrictive residential setting as circumstances dictate,

only the circuit court has the authority to release an individual from an order under

section 393.11. J.R. contends that state-initiated periodic review by the circuit court is

required for due process purposes simply because the circuit court, and only the circuit

court, has that final authority. This court thinks not.

While section 393.11 contains no provision expressly describing APD's

responsibilities should the time come when a developmentally disabled client no longer

satisfies the involuntary admission requirements, the statute can and should be read to

imply an obligation on the part of APD to petition the circuit court to end the "hold" on an

client who is no longer deemed to be a danger to himself or others. The circuit court's

order, after all, binds not only the client who is admitted to residential services but also

the agency that is required to provide the ordered services. If APD were to determine

that a client had reached the point of no longer meeting the involuntary admission

requirements, the agency could not on its own authority cease to provide those

services. Instead, acting in its own best interests as well as those of the individual the

agency was ordered to serve, APD would have to petition the appropriate circuit court

for an order releasing the agency from its responsibility to provide those services and, at

the same time, releasing the client from the order of involuntary admission. If, for

whatever reason, APD failed to seek a client's release from an involuntary admission no

longer deemed necessary, or if the client were to disagree with an agency assessment

that release would not be appropriate, then—as a safeguard—a petition for writ of

Page 24 of 26
habeas corpus may be filed "[a]t any time and without notice" by or on behalf of the client.
J.R.'s counsel suggests that it is "fundamentally unfair" to expect a man with mental retardation to "be able to navigate the complex process of seeking judicial review on his own." To be sure, "review procedures must be tailored to the capacities and circumstances of those who are to be heard," Goldberg v. Kelly, 397 U.S. 254, 269 (1970); and J.R.'s mental retardation and educational level make it unlikely that he will be able to petition the court on his own. It must be remembered, however, that, under section 393.11, petitions to an administrative hearing officer (in case of disagreement over the terms of a support plan) or to the circuit court (in case of disagreement over release eligibility) are backup measures intended to safeguard against agency errors, inattention, or inaction. If, because of his or her mental retardation and educational limitations, a client is unable to petition the courts on his or her own, family members, an advocate, or a support coordinator may be able to either find counsel for the client9 or help the client draft a letter to the court asking for the appointment of counsel.
IV. CONCLUSION Supreme Court Justice Bushrod Washington long ago wrote:
It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt. This has always been the language of this Court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member
9 In J.R.'s case, his support coordinator was able, albeit with difficulty, to find counsel to assist J.R. with court interaction.

of this bench.

Page 25 of 26

Ogden v. Saunders, 25 U.S. 213, 270 (1827); see also Davis Warehouse Co. v. Bowles,

321 U.S. 144, 153 (1944) (stating that "State statutes, like federal ones, are entitled to

the presumption of constitutionality"); Kinner, 398 So. 2d 1360, 1363 (Fla. 1981)

(recognizing that "all doubt will be resolved in favor of the constitutionality of a statute,

and that an act will not be declared unconstitutional unless it is determined to be invalid

beyond a reasonable doubt").

Here, the Florida Legislature has fashioned what, in essence, is a nonadversarial

scheme that (1) allows section 393.11 clients and their family members or advocates to

provide input into the development and annual revision of support plans that detail "the

most appropriate, least restrictive, and most cost-beneficial environment for

accomplishment of the objectives for client progress and a specification of all services

authorized," § 393.0651; (2) authorizes APD—through the advice of specialists and

without court involvement—to decide what is the "the most appropriate, least restrictive,

and most cost-beneficial environment" suitable for a client's individual needs and

behaviors; (3) authorizes APD—with client input and without court approval—to move a

client to progressively less restrictive environments as the client's needs and behaviors

change; and (4) places an implicit burden on APD, rather than the client, to petition the

court for release from an order of involuntary admission when the conditions for release

are indicated. Under this scheme, the behavioral specialists are given the flexibility to

perform the tasks and make the decisions for which they were trained, without having to

spend the time needed to prepare for and perhaps participate in periodic court

Page 26 of 26
proceedings.10 See Parham, 442 U.S. at 605 (noting that "[b]ehavioral experts in courtrooms and hearings are of little help to patients"). Parham, 442 U.S. at 605. Because specialists as well as APD representatives are not infallible, however, the Legislature has provided the means by which judicial review may be sought when and if needed.
Having carefully reviewed the terms of the statute as well as the particular circumstances of J.R.'s situation, the court is convinced that section 393.11 passes muster under the Due Process Clause. Accordingly, it is ORDERED:
1. J.R.'s motion for summary judgment (doc. 41) is DENIED. 2. J.R.'s request for oral argument (doc. 43) is DENIED. 3. The defendant's motion for summary judgment (doc. 44) is GRANTED. 4. The clerk shall enter judgment stating: "All claims are DISMISSED with prejudice." DONE AND ORDERED this 22nd day of May , 2012.
s/ William Stafford WILLIAM STAFFORD SENIOR UNITED STATES DISTRICT JUDGE
10 The court is mindful that, even if periodic judicial review were required, the circuit and administrative courts are likely to defer to the opinions expressed by the specialists having knowledge about the needs and behaviors of the clients.

 
 Case 4:11-cv-00417-WS-CAS Document 87 Filed 10/15/15 Page 1 of 23 Case: 12-14212 Date Filed: 10/15/2015 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Amy C. Nerenberg Acting Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
October 15, 2015

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 12-14212-AA Case Style: JR v. Michael Hansen District Court Docket No: 4:11-cv-00417-WS-CAS

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later).
Pursuant to Fed.R.App.P. 39, costs taxed against appellee.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call David L. Thomas, AA at (404) 335-6169.
Sincerely,
AMY C. NERENBERG, Acting Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

Case 4:11-cv-00417-WS-CAS Document 87 Filed 10/15/15 Page 2 of 23 Case: 12-14212 Date Filed: 10/15/2015 Page: 1 of 22
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ No. 12-14212 ________________________
D.C. Docket No. 4:11-cv-00417-WS-CAS J.R.,
Plaintiff-Appellant, versus MICHAEL HANSEN, in his Official Capacity as Director of the Agency for Persons with Disabilities,
Defendant-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Florida ________________________
(October 15, 2015) Before MARTIN and FAY, Circuit Judges.* MARTIN, Circuit Judge:
* This opinion is issued as a quorum. See 28 U.S.C. § 46(d); 11th Cir. R. 34-2.

Case 4:11-cv-00417-WS-CAS Document 87 Filed 10/15/15 Page 3 of 23 Case: 12-14212 Date Filed: 10/15/2015 Page: 2 of 22
Two years ago we certified questions to the Florida Supreme Court about that State’s scheme for the involuntary commitment of the intellectually disabled. J.R. v. Hansen, 736 F.3d 959 (11th Cir. 2013) (J.R. I). Today we revisit this appeal with the benefit of that court’s answers. See J.R. v. Palmer, ___ So. 3d ___, 2015 WL 2236760 (Fla. May 14, 2015) (J.R. II). We hold that the statutory scheme, as definitively interpreted by the Florida Supreme Court, is facially unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
I. Background A. The Statutory Framework
J.R. claims that Florida law denies due process because it permits the State to keep intellectually disabled people like him involuntarily committed indefinitely without periodic review. Florida’s statutory framework for involuntarily committing the intellectually disabled is somewhat complicated, involving several interlocking provisions.
Chapter 393 of the Florida Statutes provides for the treatment of people with “developmental disabilities.” Fla. Stat. § 393.062; J.R. II, 2015 WL 2236760, at *4. The chapter gives the Agency for Persons with Disabilities (APD) authority to provide both voluntary and involuntary treatment. Fla. Stat. §§ 393.063(1), .065, .11; J.R. II, 2015 WL 2236760, at *4. Section 393.11 governs the involuntary
2

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admission of people who are intellectually disabled to non-secure residential
facilities.1 It provides:
If a person has an intellectual disability and requires involuntary admission to residential services provided by the agency, the circuit court of the county in which the person resides has jurisdiction to conduct a hearing and enter an order involuntarily admitting the person in order for the person to receive the care, treatment, habilitation, and rehabilitation that the person needs.2
A state circuit court may involuntarily admit a person only if, after a hearing,
see § 393.11(7), it makes three findings relevant here: (1) the person is
intellectually disabled; (2) a residential setting is the least restrictive and most
appropriate way to meet the person’s needs; and (3) the person is likely to injure
himself or others if not admitted, § 393.11(8)(b).3
1 “Residential facilities” “provid[e] room and board and personal care for persons who have developmental disabilities.” Fla. Stat. § 393.063(28).
2 Section 393.11 does not specify whether the residential facilities are “secure” or “nonsecure.” But a separate statute not relevant here, Fla. Stat. § 916.303(3), contemplates placement in secure facilities under different admission standards. Compare id. (referring to “secure” facilities), with § 393.11 (mentioning neither “secure” nor “non-secure”). The parties and the District Court have assumed that § 393.11 concerns admission to non-secure facilities, so we do the same.
3 This general description in text suffices for our purposes. For the inquisitive, the statute provides in full:
An order of involuntary admission to residential services may not be entered unless the court finds that:
1. The person is intellectually disabled or autistic; 2. Placement in a residential setting is the least restrictive and most appropriate alternative to meet the person’s needs; and 3. Because of the person’s degree of intellectual disability or autism, the person:
a. Lacks sufficient capacity to give express and informed consent to a voluntary application for services pursuant to [§] 393.065 and lacks basic survival and self-care skills to such a degree that close
3

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Shortly after a person is admitted, the APD must give a “support plan” to the circuit court that ordered admission. § 393.11(8)(e). Section 393.0651, which governs support plans, says that “[t]he ultimate goal of each [support] plan, whenever possible, shall be to enable the client[4] to live a dignified life in the least restrictive setting, be that in the home or in the community.” A support plan may call for the APD to place a client in a variety of settings, from very restrictive and costly to quite permissive and inexpensive (to the State, at least). § 393.0651(5) (listing six possible placements, ranging from a “[d]evelopmental disabilities center”5 to the “[c]lient’s own home or the home of a family member or direct service provider”). The APD must initially develop a support plan in consultation with the client, his parent or guardian, or his appointed advocate. Id. It must then review and revise each client’s support plan each year based on his progress in achieving the objectives of his earlier support plans. § 393.0651(7).
supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being; or b. Is likely to physically injure others if allowed to remain at liberty. 4 A person who is involuntarily admitted is called a “client.” § 393.063(5); see also J.R. II, 2015 WL 2236760, at *4. 5 A “[d]evelopmental disabilities center” is a “state-owned and state-operated facility . . . providing for the care, habilitation, and rehabilitation of clients with developmental disabilities.” § 393.063(10)
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Importantly, the circuit court that first orders a person involuntarily admitted keeps jurisdiction over the admission order, and the admitted person “may not be released . . . except by order of the court.” § 393.11(11). And the court is never required to review a continuing involuntary admission. Compare Fla. Stat. § 916.303(3) (mandating that admissions to a secure facility, which are not at issue here, “must be reviewed by the court at least annually at a hearing”), with § 393.11 (containing no similar requirement); see also J.R. II, 2015 WL 2236760, at *9.
A person who is involuntarily admitted under § 393.11 thus has little recourse to challenge the admission. If he disagrees with his support plan, he may challenge it in an administrative proceeding, § 393.0651(8), but the administrator cannot change or vacate the order of involuntary admission or order release. As we have said, only the circuit court can do that. § 393.11(11); see also J.R. II, 2015 WL 2236760, at *9. The only avenue for relief from the order of admission is by way of habeas corpus: an involuntarily admitted person may challenge the admission order by filing a habeas corpus petition with the circuit court that signed the order in the first instance. § 393.11(13); J.R. II, 2015 WL 2236760, at *8. B. J.R.
J.R. is an intellectually disabled man with an IQ of 56. He functions as a seven-year-old. “Although J.R.’s [intellectual disability] will always exist, his potential for dangerousness . . . can change.” In 2000 J.R. was charged with sexual
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battery in Lee County, Florida. The Lee County Circuit Court found J.R.
incompetent to stand trial and involuntarily admitted him to the Department of
Children and Family Services (the precursor to the APD, J.R. II, 2015 WL
2236760, at *1 n.1). In 2004 J.R. was involuntarily admitted to non-secure
residential services under § 393.11. The order involuntarily admitting J.R.
contains no end date.
J.R. has lived in several different settings since his admission. While J.R.’s
commitment is characterized by the statutory scheme as “non-secure,” his liberty is substantially limited.6 As the District Court explained by way of example: “[i]f he
were to ‘elope,’ the police would probably be called to return him” to his group
home. Beyond that, J.R. “is subject to a daily curfew of 10 p.m.”; he cannot drink
alcohol; he had to “earn” the right to leave his group home, and when he does
leave “he must always inform the . . . staff exactly where he is going, the purpose
of his trip, and when he will return.” If he does not comply with these
requirements, “he may lose his right to freedom of movement.” While the precise
6 The APD insists that J.R. is merely “admitted,” not “committed.” It says that the “use of the term ‘commitment’ implies a more restrictive living setting than the community setting that J.R. has maintained.” Quoting Black’s Law Dictionary, the APD maintains that “commitment” necessarily implies confinement to a prison, mental hospital, or other institution. We are not so sure that involuntary “admission” to a residential group home does not fit within that definition. But even if it does not, this argument is semantic wrangling. The APD is trying to make a distinction between “commitment” and “admission,” but even if a distinction exists it would make no difference to this appeal. Whether we call it “commitment” or “assignment” or something else altogether (perhaps “free rent”), the substance of the action is the same: the State exercises its sovereignty to force J.R. to live in a place he does not want to live, and prevents him from leaving. That is a curtailment of his liberty by any name.
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restrictions on J.R.’s liberty have changed and may continue to change with the annual revision of his support plan,7 the circuit court has not held a hearing about J.R.’s commitment since 2005. Neither has J.R. filed a habeas petition seeking release. C. Procedural History
In 2011 J.R. filed suit under 42 U.S.C. § 1983 against Michael Hansen, the Director of the APD.8 He alleged that Florida’s statutory scheme denies due process because it permits indefinite involuntary commitment without periodic review by a decision-maker with authority to order release.9
On cross motions for summary judgment, the District Court held that the statutory scheme was constitutional. It rested its holding largely on its belief that § 393.11, properly interpreted, contains an implicit requirement that if a committed person no longer meets the admission criteria, the APD must petition the circuit court to order release. Because the scope of the APD’s responsibilities under the statute was (and is) critical to the constitutional inquiry, and because making that
7 For example, under J.R.’s most recent support plan, he was able to move to a new residence closer to his family. But there has been no release recommendation.
8 After J.R. filed his notice of appeal, Mr. Hansen resigned as the Director of the APD; he was replaced by Barbara Palmer. At all relevant times the APD has defended J.R.’s suit. For that reason, we refer to the Defendant-Appellee as “the APD.”
9 J.R. does not argue that the initial admission process is unconstitutional. He objects only to ongoing commitment without periodic review.
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determination was (and is) a question requiring interpretation of Florida law, we certified questions to the Florida Supreme Court. J.R. I, 736 F.3d at 974.10
We now have that court’s answer. It turns out that the District Court was mistaken. Florida law contains no requirement, explicit or implicit, that the APD review the continuing commitment of intellectually disabled persons. J.R. II, 2015 WL 2236760, at *1. Neither does Florida law require that the APD petition the admitting circuit court to release a person who no longer meets the criteria for commitment. Id. Because the Florida Supreme Court “is unquestionably the ultimate expositor of [Florida] law,” Riley v. Kennedy, 553 U.S. 406, 425, 128 S. Ct. 1970, 1985 (2008) (alteration adopted) (quotation omitted), we are bound by its conclusive interpretation of § 393.11.
II. Standard of Review “We review de novo the district court’s rulings on the parties’ cross motions for summary judgment.” Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). A plaintiff challenging a law as facially unconstitutional “must establish that no set of circumstances exists under which the [law] would be valid.” Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th Cir. 2001) (quotation omitted).
10 “When substantial doubt exists about the answer to a material state law question upon which the case turns, a federal court should certify that question to the state supreme court . . . to offer the state court the opportunity to explicate state law.” Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996) (per curiam).
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III. Discussion A state shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1. “The Due Process Clause provides two different kinds of constitutional protections: procedural due process and substantive due process.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). Procedural due process is, as its name suggests, “a guarantee of fair procedure.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990). J.R. brings a procedural due process claim. See McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en banc) (procedural due process claim may form the basis of a § 1983 suit). “[A] § 1983 claim alleging a denial of procedural due process requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally[] inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). The APD concedes that the first two elements of the procedural due process inquiry are met here. The question for us is whether § 393.11 provides constitutionally adequate process. A. Constitutionally Adequate Process A state must release a person who is involuntarily committed if the grounds for his commitment cease to exist. See O’Connor v. Donaldson, 422 U.S. 563, 574–75, 95 S. Ct. 2486, 2493 (1975); cf. Jackson v. Indiana, 406 U.S. 715, 738, 92
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S. Ct. 1845, 1858 (1972) (“[D]ue process requires that the nature and duration of
commitment bear some reasonable relation to the purpose for which the individual
is committed.”). But that requirement—release the committed when they deserve
to be let out—is toothless if a state does not periodically review whether the
grounds for commitment are met. That is, a state could get around the timely-
release requirement by simply refusing to ever consider the continued propriety of
commitment. To effectuate that requirement, then, the state must undertake some
form of periodic review. See Parham v. J.R., 442 U.S. 584, 607, 99 S. Ct. 2493,
2506 (1979).11
But what form of review is constitutionally adequate? To answer that
question, courts turn to the balancing test from Mathews v. Eldridge, 424 U.S. 319,
96 S. Ct. 893 (1976), which requires consideration of several factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
11 Accord, e.g., Doe v. Austin, 848 F.2d 1386, 1396 (6th Cir. 1988) (explaining that “due process requires that some periodic review take place during” a continued involuntary commitment); Clark v. Cohen, 794 F.2d 79, 86 (3d Cir. 1986) (explaining that a plaintiff “was entitled to periodic review of her commitment”); cf. Williams v. Wallis, 734 F.2d 1434, 1438 (11th Cir. 1984) (upholding a scheme that provided periodic review of continued commitment and remarking that “[t]he frequency of the evaluations also reduces the risk that the patient will be confined any longer than necessary”); Hickey v. Morris, 722 F.2d 543, 549 (9th Cir. 1983) (holding that a statute adequately protected a plaintiff’s liberty because it required “regular review of his continued confinement”).
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Id. at 335, 96 S. Ct. at 903. The Mathews test is stated at a high level of generality. It does not provide
much guidance for this (or any) specific context. And constitutionally adequate process, the Supreme Court has said, is a flexible concept that “cannot be divorced from the nature of the ultimate decision that is being made.” Parham, 442 U.S. at 608, 99 S. Ct. at 2507. B. Supreme Court and Eleventh Circuit Precedent
So we are grateful to have two cases, one from the Supreme Court and one from a panel of this Court, which are especially instructive in helping us consider what process is constitutionally adequate after involuntary civil commitment: Parham v. J.R. (no relation) and Williams v. Wallis.
In Parham, the Supreme Court considered constitutionally adequate process before and after the voluntary commitment of children to state hospitals by their parents. 442 U.S. at 587, 99 S. Ct. at 2496. A plaintiff class of committed children challenged Georgia’s scheme, arguing that they had a right to notice and a hearing before commitment. Id. at 587–88 & n.2, 99 S. Ct. at 2496–97 & n.2. Though the Supreme Court upheld Georgia’s practice, it wrote this:
We conclude that the risk of error inherent in the parental decision to have a child institutionalized . . . is sufficiently great that some kind of inquiry should be made by a “neutral factfinder” to determine [if] the statutory requirements for admission are satisfied. . . . It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it
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is necessary that the child’s continuing need for commitment be reviewed periodically by a similarly independent procedure.
Id. at 606–07, 99 S. Ct. at 2506 (emphasis added). Two things made the state
scheme constitutionally adequate: review of an initial admission by a decision-
maker with authority to refuse admission, and, after admission, periodic review of the continuing need for commitment.12
It is true that the plaintiffs in Parham focused on the initial deprivation of
liberty caused by admitting children, rather than by keeping them committed, as
here. But in its opinion the Supreme Court spoke several times about the
requirements for continuing commitment. It explained that Georgia’s law
“charged [hospital superintendents] with an affirmative statutory duty to discharge
any child who is no longer . . . in need of therapy,” id. at 615, 99 S. Ct. at 2510,
“[e]ven without a request for discharge,” id. at 591, 99 S. Ct. at 2498. And the
Court linked that ongoing affirmative duty to its conclusion that the initial
deprivation of liberty was constitutional: “We have held that the periodic reviews
described in the record reduce the risk of error in the initial admission and thus
they are necessary.” Id. at 617, 99 S. Ct. at 2511 (emphasis added); see also id. at
12 Parham did not require a judicial or even administrative hearing. Because the question—whether the child meets the commitment criteria—was a medical one, the Court held that review by a “physician will suffice, so long as he or she is free to evaluate independently the child’s mental and emotional condition and need for treatment.” Id. at 607, 99 S. Ct. at 2507. The Court explained that the State had an interest in ensuring that its doctors spent their time treating patients, not preparing for court. Id. at 605–06, 99 S. Ct. at 2506; see also id. at 606, 99 S. Ct. at 2506 (“Behavioral experts in courtrooms and hearings are of little help to patients.”).
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607, 99 S. Ct. at 2506 (“It is necessary that the child’s continuing need for
commitment be reviewed periodically . . . .” (emphasis added)).
After Parham, in Williams v. Wallis, this Court addressed what process a
state must give to people who have been involuntarily committed on a continuing
basis. The plaintiffs in Williams challenged “Alabama’s procedures for the release
of patients committed to the State’s mental health system after being found not
guilty of a criminal offense by reason of insanity.” 734 F.2d at 1436. Alabama
assigned to each committed person a “treatment team” of medical professionals
that would “devise[] an individualized treatment plan” with the stated goal of
“transfer[ring] [the person] to a less restrictive environment and [securing his or
her] eventual release.” Id. The treatment team reviewed the person’s progress
every 60 to 90 days. Id. We described the process by which a committed person
(an “acquittee”) would be released:
The decision to release an acquittee is usually initiated by the treatment team. . . . After the team recommends release, an acquittee not classified as special can be released with the approval of the forensic unit director of the hospital to which he is committed. The proposed release of special patients[13] must be reviewed by the hospital’s superintendent or his designee. The reviewing authority may communicate the proposed release to the committing court, the district attorney, the acquittee’s family, and others, or may order further treatment for, or evaluation of, the acquittee. The hospital superintendent then makes the final decision whether to release the special patient.
13 “Special patients” were those who were “considered dangerous to themselves or others.” See Williams, 734 F.2d at 1436.
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Id.
The plaintiffs claimed that this release process was unconstitutional because
it did not require an adversary proceeding in which the State bore the burden of
proof. Id. at 1437. But, looking to Parham, we held that due process does not
demand an adversary proceeding. See id. at 1438–39. We explained:
Hospitals and their medical professionals certainly have no bias against the patient or against release. Therefore, we can safely assume they are disinterested decision-makers. In fact, the mental health system’s institutional goal—i.e., transfer to a less restrictive environment and eventual release—favors release. Other factors also favor release, including a perennial lack of space and financial resources, which militates against any motivation to unnecessarily prolong hospitalization, and including the medical professional’s pride in his own treatment. The frequency of the evaluations also reduces the risk that the patient will be confined any longer than necessary.
Id. at 1438 (emphasis added).
We went on to explain that requiring an adversary proceeding “would have a
natural tendency to undermine the beneficial institutional goal of finding the least
restrictive environment including eventual release.” Id. at 1439 (emphasis added).
Finally, we observed that Alabama provided a habeas corpus remedy as a
“secondary or backup procedure, a safeguard” that existed to “rectify any error that
might have occurred during the initial nonadversary review.” Id. at 1440.
From this precedent we have synthesized several guiding principles. At the
outset, as we have explained, it is clear that the State must conduct some form of
periodic review of continuing involuntary commitments. See Parham, 442 U.S. at
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607, 99 S. Ct. at 2506 (“[I]t is necessary that the child’s continuing need for commitment be reviewed periodically by a[n] . . . independent procedure.”).
Yet this still leaves the question we posed above: what type of periodic review is constitutionally adequate? It is clear that the review need not consist of an adversarial proceeding involving a judge or even an administrator. See Parham, 442 U.S. at 607–08, 99 S. Ct. at 2506–07; Williams, 734 F.2d at 1439; see also Austin, 848 F.2d at 1396 (holding that “due process requires that some periodic review take place” but not necessarily “a periodic judicial review”); Hickey, 722 F.2d at 549 (“Due process does not always require an adversarial hearing.”).
But the cases impose two related restrictions on the form of review, at least where it is nonadversarial. First, the reviewer must be required to consider the propriety of ongoing commitment. See Parham, 442 U.S. at 615, 99 S. Ct. at 2510 (noting that the hospital superintendent “is charged with an affirmative statutory duty to discharge any child who is no longer mentally ill or in need of therapy”); Williams, 734 F.2d at 1439 (observing that periodic reviews seek to meet the “goal of finding the least restrictive environment including eventual release” (emphasis added)); see also Hickey, 722 F.2d at 549 (holding that adequate procedures included “regular review of [the plaintiff’s] continued confinement”); cf. Austin, 848 F.2d at 1395–96 (explaining that periodic review must include whether
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commitment should continue); Clark, 794 F.2d at 86 (describing that the periodic
reviews considered whether to release the plaintiff).
Second, the reviewer must be authorized to order release if the criteria for
commitment are no longer met. See Parham, 442 U.S. at 607, 99 S. Ct. at 2506
(“It is necessary that the decisionmaker have the authority to refuse to admit any
child who does not satisfy the medical standards for admission.”); Williams, 734
F.2d at 1440 (“[T]he release decision is first addressed in the nonadversary
proceedings described above, and the final release decision can be, and most often
is, made at this level by the hospital professionals.” (emphasis added)).14
For instance, in Clark the Third Circuit considered a review scheme that
violated this second restriction. There, medical professionals periodically
reviewed the plaintiff’s continued confinement and had “consistently
recommended that [she] be released” for something like eight years. Clark, 794
14 The APD argues that Williams does not stand for the proposition that the reviewer must be authorized to order release. It is true that in that case the “treatment team” was responsible for periodically reviewing continued involuntary commitment, but the treatment team could only “recommend[] release.” Williams, 734 F.2d at 1436; see also id. (“The decision to release an acquittee is usually initiated by the treatment team.” (emphasis added)). A hospital supervisor had to approve the treatment team’s release recommendation before the person could actually be released. See id. (explaining that the treatment team’s release recommendation for “special patients” was reviewed by “the hospital’s superintendent or his designee,” while the release recommendation for non-special patients was approved by “the forensic unit director of the hospital to which [the acquittee] [wa]s committed”). But it was the same group of medical professionals that reviewed the propriety of commitment and that, as a whole, had authority to order release. There was no requirement that the medical professionals petition a court to order release, or that some other entity without any say in the medical-review process approve release. The distance between the reviewer and the person with authority to release was vanishingly small in Williams: from medical professionals to their supervisors. Here the distance is vast: medical professionals must petition a state court to order release.
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F.2d at 86. But she was not released because “the reviewers lacked the authority to implement their recommendations.” Id. The Third Circuit found a violation of due process. Id. It explained that the review “required by the due process clause is not a moot court exercise. The [reviewers] must have the authority to afford relief.” Id.; see also id. (finding a violation of procedural due process because “[o]ver the course of more than twenty-eight years [the plaintiff] was never afforded a hearing before any decisionmaker with authority to resolve her dispute”).
Finally, the cases suggest that habeas corpus may serve as a backup to periodic, nonadversarial review. See Williams, 734 F.2d at 1440; see also Hickey, 722 F.2d at 549 (explaining that periodic, nonadversarial review is constitutional because a committed person can “receive judicial review under the court’s discretionary power or may [petition for] habeas relief”). But no case has permitted habeas to be the primary review procedure. We assume this is because habeas is by its very nature not a periodic, state-initiated review, which, as we have just explained, is required. See Parham, 442 U.S. at 607, 99 S. Ct. at 2506. C. Application
With these guiding principles in mind, our task is to determine whether Florida’s scheme provides constitutionally adequate process. We conclude that it does not. Section 393.11 is constitutionally infirm because it does not require periodic review of continued involuntary commitment by a decision-maker with
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the duty to consider and the authority to order release. Such a scheme runs afoul of Mathews, Parham, and Williams, and is unconstitutional on its face.
The APD offers several responses that it says undermine this conclusion, but none persuades us. First, at oral argument it insisted that § 393.11 contains “implied” review obligations. But as we now know, with the benefit of the Florida Supreme Court’s answers to our certified questions, the APD is mistaken in this understanding. The supreme arbiter of Florida law has told us in no uncertain terms that the statutory scheme contains no such implied obligations. J.R. II, 2015 WL 2236760, at *8 (holding that the APD “is not required under either section 393.0651 or section 393.11 . . . to petition the circuit court for a person’s release from an involuntary admission order in cases where the [APD] determines that the circumstances that led to the initial admission order have changed”).
Nevertheless, the APD argues that the support-plan review process provides the required periodic review. “Similar to the ‘treatment teams’ described in Williams,” the APD says, “the client and the client’s providers may use the support plan to recommend further review of a client’s order of involuntary admission.” (Emphasis added.) This may be true. But the fact that the State “may use” the annual support-plan review to “recommend” that the circuit court consider the propriety of continuing involuntary commitment is not enough. The Constitution demands that when a state exercises its power to involuntarily commit its citizens
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on an ongoing basis, it must require, not merely permit, review of the propriety of their commitment.
Slightly differently, the APD says that the annual support-plan review does consider the propriety of ongoing commitment, because in making the support plan the APD must evaluate the “most appropriate, least restrictive, and most costbeneficial environment for accomplishment of the objectives for client progress.” § 393.0651. And, the APD insists, the “most appropriate, least restrictive” environment may be no commitment at all. For that reason, it says, support-plan review necessarily considers whether to release a committed person.
We cannot agree, because the support-plan review process does not consider both admission criteria. To initially admit a person under § 393.11, a circuit court must find both (1) that “[p]lacement in a residential setting is the least restrictive and most appropriate alternative to meet the person’s needs” and (2) that the person “lacks basic survival and self-care skills to such a degree that close supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being” or would leave the person “likely to physically injure others if allowed to remain at liberty.” § 393.11(8)(b). But the support-plan review considers only the first half of that two-part equation. See § 303.0651 (“Each [support] plan must include the most appropriate, least restrictive, and most
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cost-beneficial environment for accomplishment of the objectives for client progress . . . .”).
There is no requirement that the support-plan review consider the second criterion: whether a person is dangerous to himself or others. So a committed person may cease to meet this second criterion but languish under continued commitment because the support plan does not address it. Take J.R. himself. We have no occasion to question whether he was dangerous at the time of his admission under § 393.11. The circuit court specifically found as much and that finding is not challenged here. But as we have already noted, J.R.’s “potential for dangerousness . . . can change.” What happens if J.R. stops being dangerous? The APD is under no obligation to consider whether he is no longer dangerous and, if he is not, release him or even recommend release to the circuit court. In this way, Florida’s scheme differs from those in Parham and Williams, where the stated purpose of the periodic reviews was to consider release. See Parham, 442 U.S. at 615, 99 S. Ct. at 2510 (noting “an affirmative statutory duty to discharge” when warranted); Williams, 734 F.2d at 1438 (describing “eventual release” as a central goal of periodic medical reviews).
In any event, we think Florida’s scheme would be constitutionally suspect even if it did require the APD to periodically review whether a person is properly committed, for a simple reason: the APD does not have the authority to order
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release. Only the admitting circuit court has that power. Nothing authorizes the APD to order release if it deigned to review the propriety of a person’s continued commitment (which it need not), even if that review indicated that the person no longer meets the commitment criteria. Neither, in such a circumstance, would the APD be required to ask the circuit court to consider release.
The APD finally argues that the availability of habeas corpus provides constitutionally adequate process. But Williams makes clear that habeas corpus is not adequate in and of itself. Habeas can be at most a backstop—a failsafe mechanism, not the sole process available. As we have already mentioned, this makes good sense because habeas review occurs only if a petitioner asks for it; it is in no way the type of periodic review that due process requires. See Williams, 734 F.2d at 1439; see also Austin, 848 F.2d at 1396 (holding that “due process requires that some periodic review take place”). And on a practical level, it seems fanciful to expect intellectually disabled persons to bring petitions for habeas corpus. We agree with one of our sister Circuits that
[n]o matter how elaborate and accurate the habeas corpus proceedings available under [state law] may be once undertaken, their protection is illusory when a large segment of the protected class [i.e., “gravely disabled” persons committed to mental institutions] cannot realistically be expected to set the proceedings into motion in the first place.
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Doe v. Gallinot, 657 F.2d 1017, 1023 (9th Cir. 1981); see also id. at 1022–23 (rejecting the State’s argument that “habeas corpus review on demand adequately protects against erroneous” commitment).
IV. Conclusion We are sympathetic to the State of Florida’s interest in involuntarily admitting the intellectually disabled to residential services in order to “prevent or reduce the severity of developmental disabilities” and to “enable individuals with developmental disabilities to achieve their greatest potential for independent and productive living.” § 393.062. Those are honorable goals, and we commend the State for striving to reach them. But we cannot sanction the State’s methods. The Constitution demands periodic review of the propriety of ongoing commitment by someone with the duty to consider and the authority to order release when appropriate. Florida’s statutory scheme does not meet those demands. REVERSED AND REMANDED.
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 U.S. District Court Northern District of Florida (Tallahassee) CIVIL DOCKET FOR CASE #: 4:11−cv−00417−WS−CAS

CLOSED

JR v. HANSEN Assigned to: SENIOR JUDGE WILLIAM STAFFORD Referred to: MAGISTRATE JUDGE CHARLES A STAMPELOS Case in other court: USCA, 12−14212−A Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 08/25/2011 Date Terminated: 05/23/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

JR

represented by PETER PRESCOTT SLEASMAN

FLORIDA INSTITUTIONAL LEGAL

SERVICES INC − NEWBERRY FL

14260 W NEWBERRY RD

STE 412

NEWBERRY, FL 32669

850−488−9071

Fax: 850−488−8640

Email: peters@disabilityrightsflorida.org

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

CASSANDRA JAE CAPOBIANCO FLORIDA INSTITUTIONAL LEGAL SERVICES INC − NEWBERRY FL 14260 W NEWBERRY RD STE 412 NEWBERRY, FL 32669 352−256−3422 Email: cassandra@floridalegal.org ATTORNEY TO BE NOTICED

KATHERINE JEAN ANN DEBRIERE FLORIDA INSTITUTIONAL LEGAL SERVICES INC − NEWBERRY FL 14260 W NEWBERRY RD STE 412 NEWBERRY, FL 32669 352−375−2494 Fax: 352−331−5202 Email: katy.debriere@jaxlegalaid.org ATTORNEY TO BE NOTICED

V. Defendant MICHAEL HANSEN

represented by JONATHAN DANIEL GRABB AGENCY FOR PERSONS WITH DISABILITIES − TALLAHASSEE FL 4030 ESPLANADE WAY STE 380 TALLAHASSEE, FL 32399−0950 850−414−8857 Fax: 850−410−0665 Email: eto@flabar.org ATTORNEY TO BE NOTICED
KAREN ANN BRODEEN OFFICE OF THE ATTORNEY

GENERAL − TALLAHASSEE FL THE CAPITOL STE PL−01 400 S MONROE ST TALLAHASSEE, FL 32399 850−414−3665 Fax: 850−488−4872 Email: karen.brodeen@myfloridalegal.com ATTORNEY TO BE NOTICED
STEPHANIE ALLISON DANIEL ARNOLD & SICHTA 6279 DUPONT STATION COURT JACKSONVILLE, FL 32257 850/414−3300 Fax: 850/488−4872 Email: Stephanie.Daniel@myfloridalegal.com ATTORNEY TO BE NOTICED

Date Filed 08/25/2011
08/25/2011 08/26/2011 09/02/2011
09/06/2011 09/13/2011 09/13/2011 09/15/2011 09/15/2011 09/19/2011 09/19/2011
09/19/2011
09/27/2011
10/06/2011 10/07/2011

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against MICHAEL HANSEN ( Filing fee $ 350 receipt number 1129−1983463.), filed by JR. (Attachments: # 1 summons) (DEBRIERE, KATHERINE) (Entered: 08/25/2011)
2 CIVIL COVER SHEET. (DEBRIERE, KATHERINE) (Entered: 08/25/2011)
3 Summons Issued as to MICHAEL HANSEN. (dlt) (Entered: 08/26/2011)
4 SUMMONS Returned Executed by JR. MICHAEL HANSEN served on 8/29/2011, answer due 9/19/2011. (Attachments: # 1 Return of Service) (DEBRIERE, KATHERINE) (Entered: 09/02/2011)
Set Deadlines/Hearings: Answer due by 9/19/2011. (erl) (Entered: 09/06/2011)
5 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 09/13/2011)
6 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 09/13/2011)
7 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 09/15/2011)
8 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 09/15/2011)
9 NOTICE of Appearance by JONATHAN DANIEL GRABB on behalf of All Defendants (GRABB, JONATHAN) (Entered: 09/19/2011)
10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by MICHAEL HANSEN. (Attachments: # 1 Appendix, # 2 Appendix) (GRABB, JONATHAN) (Entered: 09/19/2011)
Set/Reset Deadlines as to 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . (Internal deadline for referral to judge if response not filed earlier: 10/7/2011). (erl) (Entered: 09/20/2011)
11 INITIAL SCHEDULING ORDER signed by SENIOR JUDGE WILLIAM STAFFORD on 9/27/11. Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set for 10/11/2011. Rule 26 Meeting Report due by 11/10/2011. Discovery due by 1/25/2012. (amm) (Entered: 09/27/2011)
12 MEMORANDUM in Opposition re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by JR. (SLEASMAN, PETER) (Entered: 10/06/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 12 Memorandum in Opposition to Motion to Dismiss filed. (amm) (Entered: 10/07/2011)

10/10/2011 10/11/2011
10/12/2011
10/14/2011 10/14/2011 10/14/2011 10/14/2011 10/27/2011 10/27/2011
10/31/2011
11/15/2011 11/15/2011 11/15/2011 11/15/2011 12/12/2011 12/12/2011 12/14/2011 12/14/2011 12/19/2011 01/05/2012 01/13/2012 01/13/2012

13 MOTION to Proceed Anonymously by JR. (DEBRIERE, KATHERINE) (Entered: 10/10/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 13 MOTION to Proceed Anonymously (amm) (Entered: 10/11/2011)
14 ORDER GRANTING 13 PLAINTIFF'S MOTION TO PROCEED ANONYMOUSLY. Signed by SENIOR JUDGE WILLIAM STAFFORD on 10/12/2011. (erl) (Entered: 10/12/2011)
15 ATTORNEY TIME RECORDS by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 10/14/2011)
16 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 10/14/2011)
17 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 10/14/2011)
18 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 10/14/2011)
19 REPORT of Rule 26(f) Planning Meeting. (DEBRIERE, KATHERINE) (Entered: 10/27/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 19 Report of Rule 26(f) Planning Meeting (dlt) (Entered: 10/27/2011)
20 ORDER ADOPTING PARTIES' PROPOSED DISCOVERY SCHEDULE : The parties' proposed alternative discovery schedule is hereby ADOPTED. Discovery due by 1/27/2012. Dispositive Motions to be filed by 2/17/2012. Mediation to take place by 2/24/2012. Signed by SENIOR JUDGE WILLIAM STAFFORD on 10/31/2011. (dlt) (Entered: 10/31/2011)
21 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 11/15/2011)
22 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 11/15/2011)
23 ATTORNEY TIME RECORDS by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 11/15/2011)
24 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 11/15/2011)
25 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 12/12/2011)
26 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 12/12/2011)
27 ATTORNEY TIME RECORDS by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 12/14/2011)
28 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 12/14/2011)
29 ORDER DENYING 10 DEFENDANT'S MOTION TO DISMISS. Signed by SENIOR JUDGE WILLIAM STAFFORD on 12/19/2011. (dlt) (Entered: 12/19/2011)
30 Defendant Hansen's ANSWER to 1 Complaint for Declaratory and Injunctive Relief by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 01/05/2012)
31 ATTORNEY TIME RECORDS by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 01/13/2012)
32 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 01/13/2012)

01/13/2012 01/13/2012 02/08/2012 02/08/2012 02/10/2012 02/13/2012 02/14/2012 02/15/2012 02/15/2012 02/17/2012
02/17/2012 02/17/2012 02/17/2012
02/21/2012
02/22/2012
03/05/2012
03/06/2012

33 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 01/13/2012)
34 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 01/13/2012)
35 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 02/08/2012)
36 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 02/08/2012)
37 Joint MOTION requesting release from obligation to mediate by JR. (DEBRIERE, KATHERINE) (Entered: 02/10/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 37 Joint MOTION requesting release from obligation to mediate (dlt) (Entered: 02/13/2012)
38 ORDER GRANTING 37 Motion requesting release from obligation to mediate. Signed by SENIOR JUDGE WILLIAM STAFFORD on 2/14/2012. (dlt) (Entered: 02/14/2012)
39 ATTORNEY TIME RECORDS by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 02/15/2012)
40 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 02/15/2012)
41 MOTION for Summary Judgment by JR. (Internal deadline for referral to judge if response not filed earlier: 3/6/2012). (Attachments: # 1 Appendix Index, # 2 Appendix One, # 3 Appendix Six, # 4 Appendix Eight) (DEBRIERE, KATHERINE) Additional attachment added on 4/10/12 Per Order 45 : # 5 Sealed Appendices #2,3,4,5,7 and 9) (amm). (Entered: 02/17/2012)
42 MOTION to Seal Certain Summary Judgment Appendices #2,3,4,5,7 and 9 by JR. (DEBRIERE, KATHERINE) (Entered: 02/17/2012)
43 MOTION re 41 MOTION for Summary Judgment Oral Argument Request by JR. (DEBRIERE, KATHERINE) (Entered: 02/17/2012)
44 MOTION for Summary Judgment by MICHAEL HANSEN. (Internal deadline for referral to judge if response not filed earlier: 3/6/2012). (Attachments: # 1 Exhibit Exhibit A− Affidavit, # 2 Exhibit Exhibit B− Motions to Dismiss Charges & for Involuntary Admission, # 3 Exhibit Exhibit C− Motion for Involuntary Admission, # 4 Exhibit Exhibit D− Order for Involuntary Admission, # 5 Exhibit Exhibit E− Register of Actions) (GRABB, JONATHAN) (Entered: 02/17/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 42 Plaintiff's MOTION to Seal Certain Summary Judgment Appendices #2,3,4,5,7 and 9, 41 Plaintiff's MOTION for Summary Judgment , 44 Defendant's MOTION for Summary Judgment , 43 Plaintiff's MOTION Oral Argument Request re 41 MOTION for Summary Judgment (dlt) (Entered: 02/21/2012)
45 ORDER GRANTING 42 PLAINTIFF'S MOTION TO FILE UNDER SEAL. The clerk is directed to file, under seal, the appendices that have been submitted to the clerk by the plaintiff. Signed by SENIOR JUDGE WILLIAM STAFFORD on 2/22/2012. (dlt) (Entered: 02/22/2012)
46 RESPONSE in Opposition re 44 MOTION for Summary Judgment filed by JR. (Attachments: # 1 Index to Appendices, # 2 Appendix Appendix #1, # 3 Appendix Appendix #2, # 4 Appendix Appendix #3, # 5 Appendix Appendix #4) (DEBRIERE, KATHERINE) (Entered: 03/05/2012)
47 RESPONSE to Motion re 41 MOTION for Summary Judgment filed by MICHAEL HANSEN. (Attachments: # 1 Appendix Appendix A, # 2 Appendix Appendix B, # 3 Appendix Appendix C, # 4 Appendix Appendix D) (GRABB, JONATHAN) (Entered: 03/06/2012)

03/07/2012 03/15/2012 03/15/2012 03/15/2012 03/15/2012 03/22/2012
03/29/2012 03/30/2012 03/30/2012
04/02/2012 04/02/2012
04/05/2012 04/06/2012 04/13/2012 04/13/2012 04/13/2012

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 47 Defendant's Response to Motion (dlt) (Entered: 03/07/2012)
48 ATTORNEY TIME RECORDS by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 03/15/2012)
49 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 03/15/2012)
50 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 03/15/2012)
51 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 03/15/2012)
52 ORDER DIRECTING DEFENDANT TOT COMPLY WITH LOCAL RULES − (Internal deadline for referral to judge if Plaintiff's response not filed earlier: 4/13/2012)., Defendant statement of undisputed material facts due by 3/30/2012.). Signed by SENIOR JUDGE WILLIAM STAFFORD on 3/22/2012. (dlt) (Entered: 03/23/2012)
53 STATEMENT OF FACTS Defendant's Statement of Undisputed Material Facts in Support of Defendant's Motion for Summary Judgment Re: 44 MOTION for Summary Judgment . (GRABB, JONATHAN) (Entered: 03/29/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 53 Statement of Facts (dlt) (Entered: 03/30/2012)
54 NOTICE OF HEARING: Telephonic Status Conference set for 4/2/2012 11:00 AM before SENIOR JUDGE WILLIAM STAFFORD.
NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Angie Maxwell at 850−521−3516 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.
s/ Angie Maxwell Courtroom Deputy Clerk (amm) (Entered: 03/30/2012)
55 Minute Entry for proceedings held before SENIOR JUDGE WILLIAM STAFFORD:Telephonic Status Conference held on 4/2/2012. (Court Reporter Lisa Jones.) (amm) (Entered: 04/02/2012)
56 ORDER REASSIGNING CASE. Case reassigned to MAGISTRATE JUDGE CHARLES A STAMPELOS for all further proceedings. MAGISTRATE JUDGE WILLIAM C SHERRILL, JR no longer assigned to case. Signed by CHIEF JUDGE M CASEY RODGERS on 4/2/12. **Please use case number with new judge initials on all future filings: 4:11cv417−WS/CAS. (pll) (Entered: 04/03/2012)
57 STATUS REPORT on Plaintiff by JR. (DEBRIERE, KATHERINE) (Entered: 04/05/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 57 Status Report (erl) (Entered: 04/06/2012)
58 RESPONSE by JR re 53 Statement of Facts . (DEBRIERE, KATHERINE) (Entered: 04/13/2012)
59 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 04/13/2012)
60 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 04/13/2012)

05/01/2012 05/02/2012 05/03/2012 05/03/2012 05/04/2012 05/04/2012
05/15/2012 05/15/2012 05/22/2012
05/23/2012 06/14/2012 06/14/2012 06/19/2012 06/20/2012
07/03/2012
07/05/2012 07/12/2012 07/12/2012

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 58 Response to Statement of Facts (dlt) (Entered: 05/01/2012)
61 STATUS REPORT J.R. v. Hansen Status Update _final 5/2/12 by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 05/02/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 61 Status Report (dlt) (Entered: 05/03/2012)
62 NOTICE by JR re 61 Status Report (DEBRIERE, KATHERINE) (Entered: 05/03/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 62 Notice (Other) (erl) (Entered: 05/04/2012)
63 NOTICE TO THE PARTIES re 47 Response to Motion, 41 MOTION for Summary Judgment , 44 MOTION for Summary Judgment , 46 Response in Opposition to Motion, ( Motions for summary judgment will be taken under advisement by 5/21/2012.). Signed by SENIOR JUDGE WILLIAM STAFFORD on 5/4/2012. (erl) (Entered: 05/04/2012)
64 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 05/15/2012)
65 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 05/15/2012)
66 ORDER GRANTING 44 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. DENYING 41 J.R.'S Motion for Summary Judgment. DENYING 43 J.R.'S request for oral argument. The clerk shall enter judgment stating: "All claims are DISMISSED with prejudice." Signed by SENIOR JUDGE WILLIAM STAFFORD on 5/22/2012. (erl) (Entered: 05/23/2012)
67 CLERK'S JUDGMENT entered pursuant to 66 Order on Motion for Summary Judgment (erl) (Entered: 05/23/2012)
68 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 06/14/2012)
69 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 06/14/2012)
70 MOTION for Reconsideration re 66 Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief,,,, by JR. (DEBRIERE, KATHERINE) (Entered: 06/19/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 70 Plaintiff's MOTION for Reconsideration re 66 Order on Motion for Summary Judgment. (dlt) (Entered: 06/20/2012)
71 RESPONSE by MICHAEL HANSEN re 70 MOTION for Reconsideration re 66 Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief,,,, Defendant's Response to Plaintiff's Motion for Summary Judgment on Request for Declaratory Relief. (GRABB, JONATHAN) (Entered: 07/03/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 71 Defendant's Response To Plaintiff's Motion For Summary Judgment. (dlt) (Entered: 07/05/2012)
72 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 07/12/2012)
73 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 07/12/2012)

07/13/2012
08/10/2012
08/10/2012 08/10/2012 08/14/2012
08/14/2012
08/15/2012 08/15/2012 08/15/2012 08/16/2012 11/07/2012
01/23/2013 01/29/2013 10/15/2015 10/20/2015 10/20/2015 12/22/2015
12/29/2015 01/08/2016 07/25/2016 07/26/2016

74 ORDER DENYING 70 PLAINTIFF'S MOTION FOR RECONSIDERATION. Signed by SENIOR JUDGE WILLIAM STAFFORD on 7/13/2012. (dlt) (Entered: 07/13/2012)
75 NOTICE OF APPEAL as to 66 Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief,,,, 67 Clerk's Judgment by JR. ( Filing fee $455 Receipt Number 1129−2373297.) (DEBRIERE, KATHERINE) (Entered: 08/10/2012)
76 ATTORNEY TIME RECORDS by JR. (DEBRIERE, KATHERINE) (Entered: 08/10/2012)
77 ATTORNEY TIME RECORDS − SEALED PORTION by JR. (DEBRIERE, KATHERINE) (Entered: 08/10/2012)
78 Appeal Instructions re: 75 Notice of Appeal : The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_fillable.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 8/28/2012. (dlt) (Entered: 08/14/2012)
79 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 75 Notice of Appeal ; (dlt). Modified on 8/16/2012 to correct the judge name from Hinkle to Stafford on notice(dlt). (Entered: 08/14/2012)
80 TRANSCRIPT REQUEST by JR (DEBRIERE, KATHERINE) (Entered: 08/15/2012)
81 ATTORNEY TIME RECORDS by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 08/15/2012)
82 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL HANSEN. (GRABB, JONATHAN) (Entered: 08/15/2012)
83 USCA Case Number 12−14212−A for 75 NOTICE OF APPEAL by JR. (dlt) (Entered: 08/17/2012)
84 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 75 Notice of Appeal, Appeal No. 12−14212−AA. The entire record on appeal is available electronically. (dlt) (Entered: 11/07/2012)
85 Certified and Transmitted Record on Appeal to US Court of Appeals re 75 Notice of Appeal#12−14212−A − (2 Volumes of Pleadings) (dlt) (Entered: 01/23/2013)
86 USCA# 12−14212−A Acknowledgment 85 Appeal Record Sent to USCA. (dlt) (Entered: 01/30/2013)
87 USCA OPINION as to 75 Notice of Appeal. USCA # 12−14212−AA. REVERSED AND REMANDED. (kdm) (Entered: 10/15/2015)
88 NOTICE of Appearance by STEPHANIE ALLISON DANIEL on behalf of All Defendants (DANIEL, STEPHANIE) (Entered: 10/20/2015)
89 NOTICE of Appearance by KAREN ANN BRODEEN on behalf of All Defendants (BRODEEN, KAREN) (Entered: 10/20/2015)
90 MANDATE of USCA 87 JUDGMENT "REVERSED AND REMANDED" as to 75 Notice of Appeal. The enclosed copy of the judgment is hereby issued as mandate of the court. The court's opinion was previously provided on the date of issuance. USCA #12−14212−AA (tdl) (Entered: 12/29/2015)
91 ORDER of USCA as to 75 Notice of Appeal. USCA #12−14212−AA. (tdl) (Entered: 12/30/2015)
92 NOTICE of Appearance by CASSANDRA JAE CAPOBIANCO on behalf of JR (CAPOBIANCO, CASSANDRA) (Entered: 01/08/2016)
93 STIPULATION of Dismissal by JR. (SLEASMAN, PETER) (Entered: 07/25/2016)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE WILLIAM STAFFORD notified that action is needed Re: 93 Stipulation of Dismissal

07/26/2016 07/26/2016

(tdl) (Entered: 07/26/2016)
94 ORDER OF DISMISSAL re 93 Stipulation. The clerk shall enter judgment of dismissal stating: "This action is dismissed with prejudice." Signed by SENIOR JUDGE WILLIAM STAFFORD on 7/26/2016. (tdl) (Entered: 07/26/2016)
95 CLERK'S JUDGMENT, entered pursuant to 94 Order. (tdl) (Entered: 07/26/2016)

 
 710 Fla.

175 SOUTHERN REPORTER, 3d SERIES

698; Lukehart v. State, 70 So.3d 503, 521– 22 (Fla.2011); Troy v. State, 57 So.3d 828, 842–44 (Fla.2011). Therefore, this Court affirms the denial of each of these claims.
D. Cumulative Error
[15] Hunter also argues that he was denied a fundamentally fair trial based on cumulative error. ‘‘However, where the individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error also necessarily fails.’’ Israel v. State, 985 So.2d 510, 520 (Fla.2008) (quoting Parker v. State, 904 So.2d 370, 380 (Fla.2005)). As discussed in the analysis of the individual issues above, the alleged errors are either procedurally barred or without merit. Therefore, the cumulative error claim is similarly without merit, and we affirm the denial of this claim.
III. HABEAS PETITION
In his habeas petition, Hunter contends that Florida’s death penalty statute violates the Eighth Amendment’s evolving standards of decency because most states require a unanimous jury verdict to recommend a death sentence. However, this Court recently reviewed and rejected this same argument in Kimbrough v. State, 125 So.3d 752, 753 (Fla.2013). As we explained in Kimbrough, Hunter’s claim ‘‘is subject to our general jurisprudence that non-unanimous jury recommendations to impose the sentence of death are not unconstitutional.’’ Kimbrough, 125 So.3d at 754 (quoting Mann v. State, 112 So.3d 1158, 1162 (Fla.2013)); see also Parker, 904 So.2d at 383 (‘‘This Court has repeatedly held that it is not unconstitutional for a jury to recommend death on a simple majority vote.’’). Accordingly, we deny relief.

IV. CONCLUSION For the forgoing reasons, we affirm the denial of Hunter’s postconviction motion and deny his habeas petition. It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.
,
J.R., Appellant, v.
Barbara PALMER, etc., Appellee. No. SC13–1549.
Supreme Court of Florida.
May 14, 2015. Rehearing Denied Sept. 24, 2015. Background: Committee involuntarily admitted to non-secure residential services brought action against Agency For Persons with Disabilities (APD) facially, challenging the constitutionality of Florida’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services. The United States District Court for the Northern District of Florida, William Stafford, Senior District Judge, 2012 WL 1886438, granted summary judgment to the agency. Committee appealed. The United States Court of Appeals for the Eleventh Circuit, 736 F.3d 959, certified questions to the Florida Supreme Court. Holdings: The Supreme Court, Labarga, C.J., held that:

er is not entitled to relief. Hunter, 8 So.3d at

1075–76.

J.R. v. PALMER
Cite as 175 So.3d 710 (Fla. 2015)

Fla. 711

(1) statutory support plan review did not require APD to consider propriety of continued involuntary admission, and
(2) APD was not statutorily required to petition court for release after determining that admission requirements were no longer met.
Questions answered.
Pariente, J., filed dissenting opinion.
Canady, J., filed dissenting opinion in which Pariente, J., joined.
1. Constitutional Law O2473 Courts are without power to construe
an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications; to do so would be an abrogation of legislative power.
2. Mental Health O51.20 Statutory ‘‘support plan’’ review did
not require the Agency for Persons with Disabilities (APD) to consider the propriety of a continued involuntary admission to residential services order regarding a person with developmental disability; although statute mandated that APD ‘‘shall develop and specify by rule the core components of support plans,’’ nothing required consideration of whether the elements required for involuntary admission were still satisfied during a client’s annual support plan review. West’s F.S.A. §§ 393.0651, 393.11.
3. Mental Health O51.20 Agency for Persons with Disabilities
(APD) was not statutorily required to petition the circuit court for the release from an involuntary admission order in cases where the APD determined that the circumstances that led to the initial admission of a person with developmental disability to residential services had changed; nothing in the statutory scheme indicated that APD had an obligation to file a petition

with the circuit court for any reason. West’s F.S.A. §§ 393.0651, 393.11.
Peter P. Sleasman and Kristen Cooley Lentz of the Florida Institutional Legal Services Project, Florida Legal Services, Inc., Newberry, FL, for Appellant.
Pamela Jo Bondi, Attorney General and Allen C. Winsor, Solicitor General, Tallahassee, FL; and Juan Ricardo Collins of the Agency for Persons with Disabilities, Tallahassee, FL, for Appellee.
LABARGA, C.J.
In this case we consider three questions of law certified by the United States Court of Appeals for the Eleventh Circuit concerning the agency review requirements for the continued involuntary admission of developmentally disabled individuals to residential services under chapter 393, Florida Statutes (2011). We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. Specifically, the Eleventh Circuit certified the following questions:
1) Does ‘‘support plan’’ review under Fla. Stat. § 393.0651 require the Agency for Persons with Disabilities to consider the propriety of a continued involuntary admission to residential services order entered under Fla. Stat. § 393.11? 2) Is the Agency for Persons with Disabilities required, pursuant to Fla. Stat. § 393.0651 and/or Fla. Stat. § 393.11, to petition the circuit court for the release from an involuntary admission order in cases where the APD determines that the circumstances that led to the initial admission have changed? 3) Does Fla. Stat. § 393.062 et. seq. provide a statutory mandate to meaningfully periodically review involuntary admissions to non-secure residential services

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consistent with the commitment schemes discussed in Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) and Williams v. Wallis, 734 F.2d 1434 (11th Cir.1984)?
J.R. v. Hansen (J.R.II ), 736 F.3d 959, 974 (11th Cir.2013). For the reasons we explain, we answer the first two certified questions in the negative and decline to answer the third certified question.
FACTS AND PROCEDURAL HISTORY
J.R. is an intellectually disabled man with an IQ of 56, who functions at the level of a seven-year-old. In 2000, J.R. was charged with sexual battery in Lee County, Florida. In 2001, the circuit court concluded that J.R. was incompetent to stand trial and involuntarily committed him to the Department of Children and Family Services.1,2 In 2004, J.R. was involuntarily admitted to nonsecure residential services under section 393.11, Florida Statutes. The involuntary admission order does not include an end date for J.R.’s involuntary admission.
Upon his admission to nonsecure residential services, J.R. was given a support plan, and that plan is periodically reviewed and revised under section 393.0651, Florida Statutes. Under section 393 0651, the Agency for Persons with Disabilities (Agency) is required to conduct an annual support plan review for each person who receives services from the Agency. As a result, while J.R. has lived in multiple group homes since his commitment, the limitations on his activities have varied— and will continue to change—with the periodic revisions to his support plan. The circuit court, however, has not held a hear-

ing on J.R.’s continued involuntary admission since 2005.
On August 25, 2011, J.R. filed suit under 42 U.S.C. §§ 1983 and 1988 in the United States District Court for the Northern District of Florida against the Director of the Agency. Section 1983 provides a cause of action against any person who deprives another of rights under the color of law. Section 1988 governs proceedings in vindication of civil rights and provides for prevailing party attorney’s fees for section 1983 claims. J.R. sought a declaratory judgment that Florida’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services under section 393.11, Florida Statutes, is facially unconstitutional. J.R. argued that the statutory scheme violates the Due Process Clause of the Fourteenth Amendment because it does not provide people who have been involuntarily admitted to nonsecure residential services with periodic review of their continued involuntary confinement by a decision-maker who has authority to release them. Both J.R. and the Agency filed motions for summary judgment.
The district court granted the Agency’s motion for summary judgment and denied J.R.’s motion for summary judgment. J.R. v. Hansen (J.R.I ), No. 4:11cv417–WS, 2012 WL 1886438, at *14–15 (N.D.Fla. May 22, 2012). The court noted that a plaintiff in a procedural due process claim ‘‘must prove three elements: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process.’’ Id. at *7. The court concluded that the first two elements—deprivation of a consti-

1. Prior to October 2004, the Agency for Persons with Disabilities existed as the Developmental Disabilities Program within the Department of Children and Family Services.

2. In 2007, the Legislature authorized the use of the name Department of Children and Families. See ch. 2007–174, Laws of Fla.

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tutionally protected liberty interest and state action—were ‘‘easily proved.’’ Id. at *7–8. However, after analyzing section 393.11 in light of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979), and Williams v. Wallis, 734 F.2d 1434 (11th Cir.1984), the court determined that the third element—constitutionally inadequate process—was not established. J.R.I, 2012 WL 1886438 at *13. As a result, the district court concluded that section 393.11, Florida Statutes, is constitutional. Id. at *15. The court explained:
Here, the Florida Legislature has fashioned what, in essence, is a nonadversarial scheme that (1) allows section 393.11 clients and their family members or advocates to provide input into the development and annual revision of support plans that detail ‘‘the most appropriate, least restrictive, and most costbeneficial environment for accomplishment of the objectives for client progress and a specification of all services authorized,’’ § 393.0651; (2) authorizes [the Agency]—through the advice of specialists and without court involvement—to decide what is ‘‘the most appropriate, least restrictive, and most cost—beneficial environment’’ suitable for a client’s individual needs and behaviors; (3) authorizes [the Agency]—with client input and without court approval—to move a client to progressively less restrictive environments as the client’s needs and behaviors change; and (4) places an implicit burden on [the Agency], rather than the client, to petition the court for release from an order of involuntary admission when the conditions for release are indicated.
Id. at *14.
J.R. appealed the district court’s decision to the Eleventh Circuit. After ex-

plaining the elements of a claim brought under section 1983, the Eleventh Circuit concluded that ‘‘the first two elements of the test for a claim of the denial of due process are easily established here.’’ J.R. II, 736 F.3d at 965. The Eleventh Circuit then addressed whether section ‘‘393.11 provides constitutionally adequate process’’ regarding review of involuntary admission orders. Id. The Eleventh Circuit noted that J.R. did not challenge the constitutionality of his initial involuntary admission. Id. at 962 n. 2.
The Eleventh Circuit began its analysis by noting that ‘‘[t]he [Agency] has pointed to nothing explicit in the statute indicating that an obligation exists and has offered no evidence of procedures in place to require periodic review of the involuntary commitment status of these people.’’ Id. at 971. Based primarily on Parham and Williams, the Eleventh Circuit determined that there are ‘‘at least four guiding principles TTT in analyzing Florida’s involuntary admission to residential services scheme.’’ Id. at 968. First, some form of periodic review is required to protect against the erroneous deprivation of liberty. Id. ‘‘Second, adversarial judicial review is not necessary to protect against the erroneous deprivation of liberty where medical professionals are well positioned and mandated to consider the propriety of ongoing commitment.’’ Id. ‘‘Third, adversarial judicial review is not necessary TTT where medical professionals are well positioned and mandated to act when an ongoing commitment is no longer proper.’’ Id. at 969. And ‘‘[f]ourth, the availability of adversarial judicial review in the form of habeas proceedings serves as a backup plan to protect against erroneous deprivations of liberty.’’ Id.
The Eleventh Circuit expressed doubt regarding whether Florida’s scheme satisfies these factors. Id. at 971–73. First, the Eleventh Circuit questioned whether

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the statutes require the Agency to periodically review involuntary admission orders. Id. at 971. Section 393.0651 does not explicitly require the Agency to periodically review involuntary admission orders to determine whether an admitted person continues to meet the standard for involuntary admission set out in section 393.11. Id. Instead, section 393.0651 requires the Agency to annually review whether the client has been placed in ‘‘the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives for client progress.’’ Id. at 971. Based on this discrepancy, the Eleventh Circuit concluded that ‘‘periodic support plan reviews consider only half of the ultimate question of whether it is necessary for someone to be involuntarily admitted to residential services.’’ Id. at 972.
Second, the Eleventh Circuit concluded that section 393.0651 ‘‘does not provide procedures for the [Agency] if it were to decide someone should be released from an involuntary admission order.’’ Id. The Eleventh Circuit explained that ‘‘[n]othing on the face of § 393.0651 mandates that the [Agency], having found a client to no longer be a danger to himself or to others, should petition the circuit court [for a client’s release], the only body with the power to alter the order.’’ Id. The court pointed out that other sections in chapter 393 require judicial review of ‘‘an involuntary admission order to non-secure residential services’’ under specific circumstances involving minors. Id. (discussing §§ 393.11(9)(b), 393.115, Fla. Stat.). The Eleventh Circuit also noted ‘‘that the Florida legislature has required periodic judicial review in other contexts,’’ such as secure detention of intellectually disabled persons under section 916.303(3), Florida Statutes, involuntary commitment of persons with mental illness under sections 394.4655(7) and 394.467(7), Florida Statutes, and involuntary commitment of sexu-

ally violent predators under sections 394.918(1), (3), Florida Statutes. J.R. II, 736 F.3d at 972–73.
The Eleventh Circuit certified three questions to this Court because it was ‘‘not comfortable merely affirming [the district court’s] ruling based on implied obligations not explicit on the face of the statute,’’ and the Florida Supreme Court, rather than a federal court, is ‘‘the arbiter[ ] of Florida law.’’ Id. at 973. In the analysis that follows, we first set out the arguments presented by J.R. and the Agency. We then review the specific relevant provisions of chapter 393 and answer the first two certified questions in the negative. Finally, we explain why we decline to answer the third certified question.
PARTIES’ ARGUMENTS
J.R. contends that each of the certified questions should be answered in the negative. He argues that the first certified question should be answered in the negative because support plan review under section 393.0651, Florida Statutes (2011), does not require the Agency to consider the continued propriety of an involuntary admission order. J.R. then argues that the second certified question should be answered in the negative because neither section 393.0651 nor section 393.11 requires the Agency to petition the circuit court for an individual’s release from an involuntary admission order when the circumstances that led to the initial involuntary admission have changed. Finally, J.R. argues that the third certified question should be answered in the negative because chapter 393 does not provide a statutory mandate for meaningful periodic review of involuntary admission orders in accordance with Parham and Williams.
The Agency argues that each of the certified questions should be answered in

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the affirmative because the obligations implicit in sections 393.0651 and 393.11 require the Agency to review the continued propriety of an initial involuntary admission order during annual support plan review and petition the circuit court if an individual’s circumstances have changed to the point that involuntary admission is no longer appropriate. The Agency maintains that support plan review provides the necessary meaningful periodic review. The Agency further contends that this Court is required to interpret sections 393.0651 and 393.11 in a way that upholds their constitutionality.
APPLICABLE LAW
Chapter 393, Florida Statutes (2011), addresses the treatment of developmentally disabled individuals. A ‘‘client’’ of the Agency is ‘‘any person determined eligible by the agency for services under this chapter.’’ § 393.063(5), Fla. Stat. (2011). The Agency provides both voluntary and involuntary services to persons with developmental disabilities. See §§ 393.065, 393.11, Fla. Stat. (2011).
Section 393.11 governs the involuntary admission of developmentally disabled individuals to residential services. In order for an individual to be involuntarily admitted to residential services, the circuit court must find that:
1. The person is mentally retarded or autistic;
2. Placement in a residential setting is the least restrictive and most appropriate alternative to meet the person’s needs; and
3. Because of the person’s degree of mental retardation or autism, the person:
a. Lacks sufficient capacity to give express and informed consent to a voluntary application for services pursuant to s. 393.065 and lacks basic survival and

self-care skills to such a degree that close supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being; or
b. Is likely to physically injure others if allowed to remain at liberty.
§ 393.11(8)(b), Fla. Stat. (2011). Within forty-five days of receiving an order involuntarily admitting a person to residential services, the Agency must ‘‘provide the court with a copy of the person’s family or individual support plan and copies of all examinations and evaluations, outlining the treatment and rehabilitative programs. The agency shall document that the person has been placed in the most appropriate, least restrictive and cost-beneficial residential setting.’’ § 393.11(8)(e), Fla. Stat. (2011). The circuit court that enters the initial involuntary admission order
has continuing jurisdiction to enter further orders to ensure that the person is receiving adequate care, treatment, habilitation, and rehabilitation, including psychotropic medication and behavioral programming. Upon request, the court may transfer the continuing jurisdiction to the court where a client resides if it is different from where the original involuntary admission order was issued. A person may not be released from an order for involuntary admission to residential services except by the order of the court.
§ 393.11(11), Fla. Stat. (2011). An involuntary admission order may be appealed by ‘‘[a]ny party to the proceeding who is affected by an order of the court, including the agency.’’ § 393.11(12), Fla. Stat. (2011). In addition, an involuntarily admitted person may file a petition for a writ of habeas corpus ‘‘to question the cause, legality, and appropriateness of the person’s involun-

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tary admission’’ at any time. § 393.11(13), Fla. (2011).
All clients of the Agency must have their support plans reviewed and revised annually. § 393.0651(7), Fla. Stat. (2011). Section 393.0651 governs support plan review for clients enrolled in the Agency’s services and states that:
Each plan must include the most appropriate, least restrictive, and most costbeneficial environment for accomplishment of the objectives for client progress and a specification of all services authorized. The plan must include provisions for the most appropriate level of care for the client. Within the specification of needs and services for each client, when residential care is necessary, the agency shall move toward placement of clients in residential facilities based within the client’s community. The ultimate goal of each plan, whenever possible, shall be to enable the client to live a dignified life in the least restrictive setting, be that in the home or in the community.
‘‘In developing a client’s annual family or individual support plan, the individual or family with the assistance of the support planning team shall identify measurable objectives for client progress and shall specify a time period expected for achievement of each objective.’’ § 393.0651(6), Fla. Stat. (2011). ‘‘The agency shall develop and specify by rule the core components of support plans.’’ § 393.0651(1), Fla. Stat. (2011). Clients or their parents, guardians, or client advocates are permitted to administratively challenge the results of a support plan or a revision to a support plan. § 393.0651(8), Fla. Stat. (2011).
ANALYSIS
[1] In the first two certified questions, this Court is asked to interpret provisions of chapter 393, Florida Statutes. In Dia-

mond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362, 367 (Fla.2013), we explained that:
Legislative intent is the polestar that guides our analysis regarding the construction and application of the statute. See Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). Our statutory analysis begins with the plain meaning of the actual language of the statute, as we discern legislative intent primarily from the text of the statute. See Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007). If statutory language is ‘‘clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’’ Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)).
Further, ‘‘courts of this state are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ ’’ Holly v. Auld, 450 So.2d at 219 (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). When a specific provision is not included in a statute, we have explained that:
‘‘[W]here the legislature has inserted a provision in only one of two statutes that deal with closely related subject matter, it is reasonable to infer that the failure to include that provision in the other statute was deliberate rather than inadvertent.’’ 2B Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 51:2 (7th ed. 2008). ‘‘In the past, we have pointed to language in other statutes to show that the

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legislature ‘knows how to’ accomplish what it has omitted in the statute [we were interpreting].’’ Cason v. Fla. Dep’t of Mgmt. Services, 944 So.2d 306, 315 (Fla.2006); see also Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 959 So.2d 176, 185 (Fla.2007); Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000).
Olmstead v. FTC, 44 So.3d 76, 82 (Fla. 2010).
We reject the Agency’s argument that we are required to find the implied obligations in sections 393.0651 and 393.11 because we must interpret the statutes in a way that upholds their constitutionality. Certified questions one and two ask us to interpret the provisions of section 393.0651 and 393.11 in order to assist the Eleventh Circuit in resolving this case. Certified questions one and two do not ask us to resolve the ultimate issue in this case— whether section 393.11 is facially unconstitutional. See Internet Solutions Corp. v. Marshall, 39 So.3d 1201, 1206 (Fla.2010) (distinguishing ‘‘the subject of the certified question from the issue of whether exercising jurisdiction over Marshall would violate due process’’).
Support Plan Review
[2] We answer the Eleventh Circuit’s first certified question in the negative because support plan review under section 393.0651 does not require the Agency to consider the continued propriety of an involuntary admission order entered under section 393.11. As the Agency conceded before the Eleventh Circuit, the requirements for involuntary admission are not explicitly discussed anywhere in section 393.0651. See J.R.II, 736 F.3d at 971.
Section 393.0651 provides a comprehensive scheme regarding annual support plan review for the Agency’s clients. Section 393.0651 details who is involved in a client’s annual support plan review, the factors that must be considered during the

support plan review, and the order in which the various residential placement options must be considered. Section 393.0651 also requires that the support plan establish measurable goals for client progress; support plans for clients who are public school students are coordinated with individual education plans; and the Agency promulgate rules regarding the core components of support plans. The statutory scheme also affords the right to an administrative appeal of the decision reached following annual review of a support plan. Even though section 393.0651(1) mandates that the Agency ‘‘shall develop and specify by rule the core components of support plans,’’ the Agency has not pointed to any rule in its brief to this Court or the Eleventh Circuit that requires consideration of whether the elements required for involuntary admission are still satisfied during a client’s annual support plan review. See J.R.II, 736 F.3d at 971.
Nothing within the text of section 393.0651 can be construed to include consideration of the elements that must be established in order for a person to be involuntarily committed under section 393.11(8)(b). Nor can section 393.0651 be construed to include consideration of whether a client is a danger to himself or others to satisfy the third element for involuntary admission in section 393.11(8)(b)3. All clients of the Agency— both voluntarily and involuntarily admitted clients—receive annual support plan review. Nothing in section 393.0651 indicates that support plan review for involuntarily admitted clients differs in any way from support plan review for voluntarily admitted clients.
The Agency’s reliance on section 393.0651’s requirement that each support plan ‘‘must include the most appropriate, least restrictive, and most cost-beneficial

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environment for accomplishment of the objectives for client progress and a specification of all services authorized’’ does not take into account the continued appropriateness of an involuntary admission order. The text of section 393.11(8)(b)2, which sets forth the second element that must be found by a circuit judge in order for a person to be involuntarily admitted, substantially overlaps with the requirement regarding support plan review relied on by the Agency—‘‘[p]lacement in a residential setting is the least restrictive and most appropriate alternative to meet the person’s needs.’’ If the Legislature intended for support plan review to require consideration of all of the elements for involuntary admission, section 393.0651 would have expressly provided for it. See Olmstead, 44 So.3d at 82.
The Agency contends that the statement of legislative purpose behind chapter 393 supports the finding of an implied obligation; however, the legislative purpose does not support that proposition. The legislative purpose stated in section 393.062 provides
the development and implementation of community-based services that will enable individuals with developmental disabilities to achieve their greatest potential for independent and productive living, enable them to live in their own homes or in residences located in their communities, and permit them to be diverted or removed from unnecessary institutional placements.
The legislative purpose fails to address continued review of the appropriateness of an involuntary admission order because it does not take into account section 393.11(8)(b)3, which requires finding that an individual would be a danger to himself or others if he is allowed to remain at liberty. Section 393.0651 contains a stated goal similar to the legislative purpose dis-

cussed above: ‘‘The ultimate goal of each plan, whenever possible, shall be to enable the client to live a dignified life in the least restrictive setting, be that in the home or in the community.’’ Like chapter 393’s statement of legislative purpose, this goal does not address or imply the continued review of the appropriateness of an involuntary admission order. The Agency’s argument that support plan review includes an implied requirement to review whether an involuntarily admitted person still qualifies for involuntary admission would require this Court to impermissibly rewrite the requirements of support plan review adopted by the Legislature.
Accordingly, we answer the first certified question in the negative because support plan review under section 393.0651 does not require the Agency to consider the continued propriety of an involuntary admission order entered under section 393.11.
Circuit Court Release from Involuntary Admission
[3] We next answer the Eleventh Circuit’s second certified question in the negative because the Agency is not required under either section 393.0651 or section 393.11, Florida Statutes, to petition the circuit court for a person’s release from an involuntary admission order in cases where the Agency determines that the circumstances that led to the initial admission order have changed. Neither section 393.0651 nor section 393.11 can be construed to impose an implicit obligation on the Agency to petition the circuit court for a person’s release from an involuntary admission order when the Agency determines that the circumstances that led to the initial admission order have changed.
Section 393.11(11) does not indicate who may petition the circuit court for a person’s release from an involuntary admission; however, other subsections of section

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393.11 explicitly provide for two circumstances for challenging involuntary admission orders. First, section 393.11(13) explicitly permits an involuntarily admitted person to petition the circuit court for a writ of habeas corpus to challenge the appropriateness of his involuntary admission. Second, section 393.11(9)(b) explicitly provides that ‘‘[a]ny minor involuntarily admitted to residential services shall, upon reaching majority, be given a hearing to determine the continued appropriateness of his or her involuntary admission.’’ Section 393.115(1)(b) builds on the procedure for dealing with minors in residential services upon reaching the age of majority. It provides that in the case of a voluntarily admitted minor turning eighteen, ‘‘[i]f the resident appears to meet the criteria for involuntary admission to residential services, as defined in s. 393.11, the agency shall file a petition to determine the appropriateness of continued residential placement on an involuntary basis.’’ § 393.115(1)(b), Fla. Stat. (2011). As such, the Legislature explicitly provided for the Agency to file a petition with the circuit court to determine the appropriateness of involuntary admission in the case of a voluntarily admitted minor turning eighteen.
The Legislature, however, did not include a provision in section 393.11 regarding the Agency filing a petition with the circuit court under any circumstances. Instead, section 393.11 provides one reference to a petition being filed with the circuit court—the involuntarily admitted person’s right to file a petition for a writ of habeas corpus challenging an involuntary admission order contained in section 393.11(13). Further, section 393.11 provides for one circumstance—a minor reaching the age of majority—in which an involuntarily admitted person is entitled to a review hearing. Nothing in section 393.11 indicates that the Agency has an obligation to file a petition with the circuit

court for any reason. Because requiring the Agency to file a petition with the circuit court would impose an obligation on the Agency to undertake a specific act not required by statute, finding an implied obligation within section 393.11 that requires the Agency to file a petition based on an involuntary admission order no longer being appropriate would modify the express terms of an unambiguous statute.
Similarly, section 393.0651 does not contain any provisions that can be construed as requiring the Agency to file a petition with the circuit court for any reason. Section 393.0651 requires the Agency to do multiple things, such as consider specific factors during a support plan review, consider various residential placement options in a specified order, establish measurable goals for a client’s progress, coordinate support plans for clients who are public school students with individual education plans, promulgate rules regarding the core components of support plans, and annually provide a written report to a client or the client’s parent, guardian, or client advocate regarding the client’s ‘‘habilitative and medical progress.’’ Nowhere, though, in section 393.0651, is the Agency required— or even advised—to petition the circuit court for any reason.
The only reference to any type of review procedure mentioned in section 393.0651 is that a client or the client’s parent, guardian, or client advocate may seek administrative review of a support plan or the outcome of an annual support plan review. However, a successful administrative challenge to a support plan would presumably lead to a revised support plan rather than a petition being filed by the Agency with the appropriate circuit court for the client’s release.
While neither section 393.0651 nor section 393.11 mentions who may petition the

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circuit court for review of an involuntary admission order when a client’s circumstances change, other provisions of Florida law specifically address the periodic judicial review of various types of involuntary commitment orders. The Legislature has specifically addressed periodic judicial review in the context of secure detention of intellectually disabled persons under section 916.303(3), involuntary commitments of persons with mental illness under sections 394.4655(7) and 394.467(7), Florida Statutes, and involuntary commitments of sexually violent predators under sections 394.918(1), (3), Florida Statutes. Therefore, in certain contexts, the Legislature has exercised its prerogative to require periodic judicial review of involuntary commitment orders. See Olmstead, 44 So.3d at 82. And we decline to assume that the Legislature forgot how to address periodic judicial review of involuntary admissions to residential services under chapter 393.
Further, as discussed above regarding the first certified question, the Agency is not required to even consider all of the elements required for involuntary admission when conducting an annual support plan review under section 393.0651. Because requiring the Agency to file a petition with the circuit court would impose an obligation on the Agency to undertake a specific act not required by statute, finding an implied obligation within section 393.0651 that requires the Agency to petition the circuit court for the release from an involuntary admission order would modify the express terms of an unambiguous statute. Accordingly, we answer the second certified question in the negative because nothing in either section 393.0651 or section 393.11 can be construed to impose an implicit obligation on the Agency to petition the circuit court for a person’s release from an involuntary admission order when the Agency determines that the

circumstances that led to the initial admission order have changed.
Analysis of Federal Constitutional Case Law
We decline to answer the Eleventh Circuit’s third certified question. Unlike the first two certified questions that ask us to interpret provisions of chapter 393, the third certified question asks us to analyze chapter 393 in light of federal constitutional case law and effectively resolve J.R.’s underlying federal constitutional claim. Because this certified question asks us to interpret federal law, we decline to answer it.
CONCLUSION Based on the foregoing, we answer certified questions one and two in the negative and decline to answer certified question three. Having answered the first two certified questions and declining to answer the third, we return this case to the United States Court of Appeals for the Eleventh Circuit.
It is so ordered.
LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.
PARIENTE, J., dissents with an opinion.
CANADY, J., dissents with an opinion, in which PARIENTE, J., concurs.
PARIENTE, J., dissenting.
I agree with the statutory construction analysis set forth in Justice Canady’s dissent, which appropriately relies upon both the plain language of the statute and the interpretation of the statutory phrase ‘‘least restrictive’’ in the context of the statutory scheme to explain why the wellreasoned opinion of Judge Stafford in J.R. v. Hansen, No. 4:11cv417–WS, 2012 WL 1886438 (N.D.Fla. May 22, 2012), correctly

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interpreted chapter 393, Florida Statutes. I write to add to that matrix of statutory construction the cardinal principle that statutes should, whenever possible, be construed to ensure a constitutional outcome.
The clear and indisputable result of the majority’s statutory interpretation, despite the majority’s avoidance of it, will be a finding that the statute is unconstitutional. Yet, even though the constitutional question is at the heart of this case, the majority declines in its statutory interpretation analysis to consider one of the fundamental principles of statutory construction— that courts must strive ‘‘to construe challenged legislation to effect a constitutional outcome whenever possible.’’ Scott v. Williams, 107 So.3d 379, 384 (Fla.2013) (quoting Fla. Dep’t of Revenue v. Howard, 916 So.2d 640, 642 (Fla.2005)). Further, courts are obligated to give statutes ‘‘a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent.’’ Caple v. Tuttle’s Design–Build, Inc., 753 So.2d 49, 51 (Fla.2000) (quoting State v. Stalder, 630 So.2d 1072, 1076 (Fla.1994)).
The majority claims that because the first two certified questions do not ask this Court to resolve the ultimate issue of whether the statute is facially unconstitutional, it does not need to apply the presumption of constitutionality. See majority op. at 717 (declining to apply the principle that statutes should be interpreted in a way to uphold their constitutionality because the first two certified questions do not ask this Court to resolve the ultimate issue of constitutionality). However, the third certified question, which the majority declines to answer, asks exactly whether this statute is constitutional, and that is the ultimate issue the Eleventh Circuit Court of Appeals was asked to decide. See J.R. v.

Hansen, 736 F.3d 959, 971–73 (11th Cir. 2013).
I simply do not see how the majority can ignore the constitutional implications of its analysis of a state statute that is being specifically attacked as facially unconstitutional and fail in its statutory interpretation to view the statute through the lens of the presumption of constitutional validity. For all these reasons, I join in Justice Canady’s dissent. I would answer the first two certified questions in the affirmative and ensure that this Court’s analysis of the statute is faithful to our obligation to construe statutes in a manner that upholds their constitutionality.
CANADY, J., dissenting.
I disagree with the majority’s decision regarding the first two questions certified by the United States Court of Appeals for the Eleventh Circuit. I would answer both of those questions in the affirmative. I agree, however, with the majority’s decision to decline to answer the third certified question, which is a question of federal law rather than Florida law.
The powers and duties of a state agency ‘‘include both those expressly given and those given by clear and necessary implication from the provisions of the statute’’ under which the agency operates. City Gas Co. v. Peoples Gas Sys., Inc., 182 So.2d 429, 436 (Fla.1965). It is an elementary principle of Florida law that ‘‘[w]hen authority is given by statute to accomplish a stated governmental purpose, there is also given by implication authority to do everything necessary to accomplish the purpose that is not a violation of law or public policy.’’ Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789, 792 (1919). These principles regarding the interpretation of the statutory powers and duties of governmental entities are, of course, based on a more general principle regarding the interpretation of statutory rights (or powers) and duties: ‘‘ ‘If a statute grants a right or imposes a

722 Fla.

175 SOUTHERN REPORTER, 3d SERIES

duty, it also confers, by implication, every particular power necessary for the exercise of the one or the performance of the other.’ TTT That which is clearly implied is as much a part of the law and is as effectual as that which is expressed.’’ Girard Trust Co. v. Tampashores Dev. Co., 95 Fla. 1010, 117 So. 786, 788 (1928) (quoting Newcomb v. City of Indianapolis, 141 Ind. 451, 40 N.E. 919, 921–22 (1895)). A statutory duty obviously carries with it a duty to take the particular steps reasonably necessary for the performance of the duty.
In his order granting the Agency’s motion for summary judgment, Judge Stafford made the crucial determination that the statutory scheme ‘‘places an implicit burden on [the Agency], rather than the client, to petition the court for release from an order of involuntary admission when the conditions for release are indicated.’’ J.R. v. Hansen, No. 4:11cv417–WS, 2012 WL 1886438, at *14 (N.D.Fla. May 22, 2012). The correctness of this determination flows ineluctably from three indisputable points. The first two points are based on express provisions of the statute. The third point is based on the meaning of ‘‘least restrictive’’ in the context of the statute.
First, section 393.0651(7), Florida Statutes (2011), requires that the Agency provide for an annual revision of each client’s individual support plan. There is no suggestion that a revised individual support plan is not intended to determine the provision of services by the Agency. Second, under section 393.0651, a crucial focus of the individual support plan process is the identification of the least restrictive environment for the provision of services to a client. Section 393.0651 leaves no doubt about the importance of identifying the least restrictive environment for the provision of services:
Each plan must include the most appropriate, least restrictive, and most cost-

beneficial environment for accomplishment of the objectives for client progressTTTT The ultimate goal of each plan, whenever possible, shall be to enable the client to live a dignified life in the least restrictive setting, be that in the home or in the community.
§ 393.0651 (Emphasis added). Third, services provided to an involuntarily admitted individual are provided in a more restrictive setting than are services provided to individuals who are not involuntarily admitted. Indeed, the most restrictive setting for the provision of services is under an involuntary admission.
To reject Judge Stafford’s conclusion, it must be assumed that the Legislature intended to require the Agency to have individual support plans developed and revised with a focus on ensuring that services are provided in the least restrictive appropriate setting but did not intend to (a) require the annual review process to take into account that the context of an involuntary admission is more restrictive than other contexts, or (b) require the Agency to take the steps necessary to implement an individual support plan by seeking termination of an individual’s involuntary admission when the statutory requirements for involuntary admission are no longer satisfied. This is nonsensical.
There is no cogent reason that the annual review process should be allowed—or required—to ignore the undeniable reality that an involuntary admission is more restrictive than other contexts in which services are provided. The annual review process for an involuntarily admitted individual can only determine the ‘‘least restrictive’’ appropriate setting for services if it considers whether the legal requirements for involuntary admission are still satisfied. Similarly, once it is determined that a less restrictive context than involuntary admission is the appropriate context for the provision of services, it necessarily

J.R. v. PALMER
Cite as 175 So.3d 710 (Fla. 2015)

Fla. 723

follows that the Agency has a duty to take the steps necessary to ensure that services are provided in the less restrictive context, including petitioning the court for termination of the involuntary admission.
The ‘‘stated governmental purpose,’’ Bailey, 82 So. at 792, of the statute is the provision of services in ‘‘the most appropriate, least restrictive’’ setting possible, section 393.0651, Fla. Stat. (2011). The duty placed on the Agency to carry out that purpose necessarily carries with it ‘‘by implication’’ both the authority and the duty ‘‘to do everything necessary to accomplish the purpose that is not a violation of law or public policy.’’ Bailey, 82 So. at 792. The Agency’s consideration in the annual individual support plan review process of the appropriateness of continued involuntary admission and the Agency’s action to obtain judicial termination when continued involuntary admission no longer constitutes the ‘‘most appropriate, least restrictive’’ environment for the provision of services are both essential to carrying out the unequivocal mandate of the statute. § 393.0651, Fla. Stat. (2011). There is no express provision of law or any public policy that stands in the way of such action by the Agency. Recognizing these aspects of the statutory scheme is simply acknowledging the plain import of the statute. Failing to recognize them results from a cramped, unreasonable reading of the statutory text.
The view that the legislative purpose set forth in section 393.0651 ‘‘does not take into account section 393.11(8)(b)3, which requires finding that an individual would be a danger to himself or others if he is allowed to remain at liberty[,]’’ majority op. at 718, improperly imports incoherence into chapter 393. There is absolutely no authority, however, to support the assumption that in enacting one statutory provision the Legislature is ignorant of other related statutory provisions. On the con-

trary, it is axiomatic that the Legislature is presumed to know the law. See Holmes Cnty. Sch. Bd. v. Duffell, 651 So.2d 1176, 1179 (Fla.1995). And it is axiomatic that absent a clear inconsistency courts ‘‘must TTT construe related statutory provisions in harmony with one another.’’ Villery v. Fla. Parole & Prob. Comm’n, 396 So.2d 1107, 1111 (Fla.1980) (superseded by statute as recognized by Van Tassel v. Coffman, 486 So.2d 528, 529 (Fla.1986)). The various provisions of chapter 393 therefore must be read harmoniously in light of the whole chapter.
Finally, the duty of the Agency under section 393.0651 is in no way circumscribed by the statutory provisions related to judicial review of involuntary admissions when a client reaches the age of majority, see § 393.115, Fla. Stat. (2011), or the provisions authorizing an involuntarily admitted person to petition for release, see § 393.11(13), Fla. Stat. (2011). These specific provisions are in no way inconsistent with the broad duty imposed by section 393.0651. The implication that they limit the reach of the duty imposed by section 393.0651 is not reasonable. That implication effectively rewrites the clearly established statutory duty of the Agency under section 393.0651. The annual review process is a critical feature of the statutory scheme designed to ensure the ongoing protection of the rights of the Agency’s clients. It is neither necessary nor appropriate to truncate that process because the Legislature has adopted other specific statutory measures to help protect the rights of clients in particular circumstances.
I therefore dissent.
PARIENTE, J., concurs.
,

 
 J.R. v. HANSEN
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959

proof of some specific illegal conduct,’’ Schad v. Arizona, 501 U.S. 624, 633, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), his argument disregards the reckless disregard for human life inherent in his commission of the bank robbery—an intentional scienter that provides the culpability for felony murder, making it akin to first degree murder. See id. at 641–42, 644, 111 S.Ct. 2491.
[12] Finally, we disagree with Mr. Jackson that § 2113(e) is sufficiently ambiguous such that the rule of lenity applies. Lenity is appropriate only when congressional purpose is unclear. See Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). We have already determined that the language of § 2113(e) establishes the intent to punish for any killing resulting from a bank robbery. Accordingly, we hold that the district court’s decision not to instruct the jury on intent for the two deaths was proper under § 2113(e).
AFFIRMED IN PART and REMANDED. On remand, the district court should vacate the sentence and resentence Mr. Jackson consistent with our opinion.
,
J.R., Plaintiff–Appellant,
v.
Michael HANSEN, in his Official Capacity as Director of the Agency For Persons with Disabilities, Defendant– Appellee.
No. 12–14212.
United States Court of Appeals, Eleventh Circuit.
Aug. 20, 2013. Background: Person involuntarily admitted to ‘‘non-secure’’ residential services

commenced action against Agency For Persons with Disabilities facially challenging the constitutionality of Florida’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services. The United States District Court for the Northern District of Florida, William Stafford, Senior District Judge, 2012 WL 1886438, granted summary judgment to the agency. Plaintiff appealed.
Holding: The Court of Appeals, Martin, Circuit Judge, held that certification of questions to the Supreme Court of Florida was warranted.
Questions certified.
1. Federal Courts O392
When substantial doubt exists about the answer to a material state law question upon which the case turns, a federal court should certify that question to the state supreme court to offer the state court the opportunity to explicate state law.
2. Constitutional Law O3867
A § 1983 claim alleging a denial of procedural due process requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983.
3. Constitutional Law O3875
Constitutionally adequate process is a flexible concept that cannot be divorced from the nature of the ultimate decision that is being made. U.S.C.A. Const. Amend. 14.
4. Constitutional Law O4041
Due process requires that people who are lawfully involuntarily committed be re-

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736 FEDERAL REPORTER, 3d SERIES

leased once the grounds for the initial commitment no longer exist; thus, when someone is civilly committed, there must be some form of periodic post-commitment review. U.S.C.A. Const.Amend. 14.
5. Constitutional Law O3875 Framework to evaluate the due pro-
cess sufficiency of particular procedures requires consideration of three distinct factors: (1) private interest that will be affected by official action; (2) risk of erroneous deprivation of such interest through procedures used, and probable value, if any, of additional or substitute procedural safeguards; and (3) government’s interest, including function involved and fiscal and administrative burdens that additional or substitute procedural requirements would entail. U.S.C.A. Const.Amend. 14.
6. Constitutional Law O4041 Some form of periodic review is re-
quired with respect to deprivations of liberty in the form of civil commitments to protect against the erroneous deprivation of liberty, but adversarial review, arguably the gold standard of due process protections, is not necessarily required. U.S.C.A. Const.Amend. 14.
7. Constitutional Law O4041 Adversarial judicial review is not nec-
essary to protect against the erroneous deprivation of liberty where medical professionals are well positioned and mandated to consider the propriety of ongoing civil commitment; in other words, where medical professionals’ periodic reviews must consider release, courts are generally satisfied that the patient’s due process liberty rights are protected. U.S.C.A. Const. Amend. 14.
8. Constitutional Law O4041 Adversarial judicial review is not nec-
essary to protect against the erroneous deprivation of due process liberty rights

where medical professionals are well positioned and mandated to act when an ongoing civil commitment is no longer proper. U.S.C.A. Const.Amend. 14.
9. Constitutional Law O4489
Habeas Corpus O537.1
The availability of adversarial judicial review in the form of habeas proceedings serves as a backup plan to protect against erroneous deprivations of due process liberty rights in the form of civil commitments. U.S.C.A. Const.Amend. 14.
10. Federal Courts O392
Certification of a question to the Supreme Court of Florida was warranted as to whether ‘‘support plan’’ review requires the Agency for Persons with Disabilities to consider the propriety of a continued involuntary admission to residential services order, since that state law question was material to the case which had been brought by a person involuntarily admitted to ‘‘non-secure’’ residential services facially challenging the constitutionality of Florida’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services, and substantial doubt existed about the answer. U.S.C.A. Const. Amend. 14; West’s F.S.A. §§ 393.0651, 393.11.
11. Federal Courts O392
Certification of a question to the Supreme Court of Florida was warranted as to whether the Agency for Persons with Disabilities (ADP) required to petition the circuit court for the release from an involuntary admission order in cases where the APD determines that the circumstances that led to the initial admission order have changed, since that state law question was material to the case which had been brought by a person involuntarily admitted to ‘‘non-secure’’ residential services facially challenging the constitutionality of Flori-

J.R. v. HANSEN
Cite as 736 F.3d 959 (11th Cir. 2013)

961

da’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services, and substantial doubt existed about the answer. U.S.C.A. Const. Amend. 14; West’s F.S.A. §§ 393.0651, 393.11.
12. Federal Courts O392
Certification of a question to the Supreme Court of Florida was warranted as to whether Florida’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services mandates meaningful periodical review of involuntary admissions to non-secure residential services consistent with the commitment schemes, since that state law question was material to the case which had been brought by a person involuntarily admitted to ‘‘non-secure’’ residential services facially challenging the constitutionality of that statutory scheme, and substantial doubt existed about the answer. U.S.C.A. Const.Amend. 14; West’s F.S.A. §§ 393.0651, 393.11.
13. Constitutional Law O3865
Due process of law requires that some procedural protection must be given to decrease the risk that a permissible deprivation is arrived at erroneously. U.S.C.A. Const.Amend. 14.
Katherine Debriere, Kristen Cooley Lentz, Peter Prescott Sleasman, Florida Institutional Legal Services, Inc., Newberry, FL, for Plaintiff–Appellant.

Jonathan Daniel Grabb, Michael A. Palecki, Agency for Persons with Disabilities, Tallahassee, FL, for Defendant–Appellee.
Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:11–cv–00417–WS–CAS.
Before MARTIN and FAY, Circuit Judges, and EDENFIELD,* District Judge.
MARTIN, Circuit Judge:
J.R. is a man who was involuntarily admitted to ‘‘non-secure’’ residential services administered by the Florida Department of Children and Family Services in 2004. Under that same 2004 admission order, he continues to be committed in a non-secure residential facility. He filed suit against Michael Hansen, in his official capacity as the Director of the Agency for Persons with Disabilities (the successor to the Department of Children and Family Services), bringing a facial challenge to the constitutionality of Florida’s statutory scheme for involuntarily admitting intellectually disabled persons to residential services, Florida Statutes § 393.11. The Agency for Persons with Disabilities (APD) is responsible for administering these residential services in Florida.1 The District Court granted summary judgment to the APD, and it is that ruling that J.R. appeals to this Court.
J.R. says that § 393.11 violates the Due Process Clause of the 14th Amendment on its face because it creates an impermissibly high risk of wrongful deprivations of liberty. This is so, he says, because it

* Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, sitting by designation.
1. After the filing of the Notice of Appeal in this case, Michael Hansen resigned and Barbara Palmer became the new Director of the Agency for Persons with Disabilities. At all

times relevant to this appeal, the state statute has been defended by the APD. Therefore, for simplicity, we have referred to the Defendant– Appellee’s arguments as being made by the APD, rather than by Mr. Hansen or Ms. Palmer.

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736 FEDERAL REPORTER, 3d SERIES

does not provide people who have been involuntarily admitted to non-secure residential services with periodic review of their continued involuntary confinement by a decision maker who has authority to release them.2 Specifically, no one disputes that the circuit court that issues the initial involuntary admission order retains jurisdiction over the order of commitment, and that a person may only be released by further circuit court order. See Fla. Stat. § 393.11(11). Neither is it disputed that the court that committed J.R. has not held a single hearing regarding his admission order since June of 2005. It is not statutorily required to do so. See id.
[1] The District Court, however, employed the doctrine of constitutional avoidance to find that the statutory scheme provided constitutionally sufficient process largely on the basis of its finding that § 393.11 ‘‘places an implicit burden on APD, rather than the client, to petition the [admitting] court for release from an order of involuntary admission when the conditions for release are indicated.’’ The District Court certainly recognized that ‘‘section 393.11 contains no provision expressly describing APD’s responsibilities should the time come when a developmentally disabled client no longer satisfies the involuntary admission requirements.’’ However, the court explained that the statute passed constitutional muster because it ‘‘can and should be read to imply an obligation on the part of APD to petition the circuit court to end the ‘hold’ on a client who is no longer deemed to be a danger to himself or others.’’ At oral argument before our Court, the APD re-

peatedly asserted that though the statute does not explicitly say so, it has an obligation to periodically review the propriety of continued involuntary admission and petition the court if necessary. Recognizing, as the District Court did, that the scope of the APD’s obligations under the statute is critical to the constitutional inquiry, and also that this scope is a question of Florida statutory law, we conclude that in order for this court to decide this case we must certify certain questions to the Supreme Court of Florida.3
I. The Statute
Chapter 393 of the Florida Statutes provides for people with ‘‘Developmental Disabilities.’’ See Fla. Stat. § 393.062 et seq. The legislative declaration of intent explains that the state legislature decided to privatize care for these people, prioritizing ‘‘community-based programs and services TTT in lieu of operation of programs directly by state agencies.’’ Id. § 393.062. Florida’s Medicaid Home and Community Based Services (HCBS) waivers combine state and federal funds to pay for these community-based living arrangements. A limited number of spots are available to people with disabilities, and currently there are about 20,000 voluntary applicants on the waiting list to receive HCBS Medicaid waiver services, including the services that J.R. receives.
Florida Statutes § 393.11 governs Florida’s ‘‘[i]nvoluntary admission to residential services’’ scheme for intellectually disabled persons and explains that:
If a person has an intellectual disability and requires involuntary admission to

2. Notably, J.R. does not argue that the initial admission process under § 393.11 is constitutionally deficient.
3. ‘‘When substantial doubt exists about the answer to a material state law question upon which the case turns, a federal court should

certify that question to the state supreme
court TTT to offer the state court the opportunity to explicate state law.’’ Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 761 (11th
Cir.1996).

J.R. v. HANSEN
Cite as 736 F.3d 959 (11th Cir. 2013)

963

residential services provided by the agency, the circuit court of the county in which the person resides has jurisdiction to conduct a hearing and enter an order involuntarily admitting the person in order for the person to receive the care, treatment, habilitation, and rehabilitation that the person needs.
Fla. Stat. § 393.11(1). Upon petition or motion filed in Florida state circuit court by a petition committee, the APD, the state attorney, or counsel for the person needing services, see id. §§ 393.11(2), 916.303(2), the court appoints a committee to examine the person’s intellectual abilities. Id. § 393.11(5). The circuit court then holds an adversarial hearing, where the person is entitled to representation by counsel and can examine witnesses. See id. § 393.11(6), (7).
The circuit court may not involuntarily admit the person unless it finds that:
1. The person is intellectually disabled or autistic;
2. Placement in a residential setting is the least restrictive and most appropriate alternative to meet the person’s needs; and
3. Because of the person’s degree of intellectual disability or autism, the person;
a. Lacks sufficient capacity to give express and informed consent to a voluntary application for services pursuant to [§ ] 393.065 and lacks basic survival and self-care skills to such a degree that close super-

vision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s wellbeing; or
b. Is likely to physically injure others if allowed to remain at liberty.
Id. § 393.11(8)(b) (emphasis added).4
Within 45 days of receiving the order, the APD must provide the circuit court with a copy of a ‘‘support plan’’ for its client, outlining a treatment plan and showing ‘‘that the person has been placed in the most appropriate, least restrictive and cost-beneficial residential setting.’’ Id. § 393.11(8)(e).
‘‘Support plans’’ are governed by section 393.0651 and apply to all APD clients in non-secure residential services without reference to voluntary or involuntary admission. See id. § 393.0651. ‘‘The ultimate goal of each [support] plan, whenever possible, shall be to enable the client to live a dignified life in the least restrictive setting, be that in the home or in the community.’’ Id. § 393.0651.5 Initial support plans must be developed in consultation with the client, the client’s parent or guardian, or the client’s appointed advocate. Id. Support plans must then be reviewed and revised annually in consultation with the same parties and based on a client’s progress in achieving support plan objectives. Id. § 393.0651(7).

4. Section 393.11 does not specify whether the

residential services are ‘‘secure’’ or ‘‘non-se-

cure.’’

However, Florida Statutes

§ 916.303(3) allows the court to place a per-

son in a secure facility, rather than a commu-

nity placement, under a different admission

standard and subject to more robust annual

review. Compare Fla. Stat. § 916.303(3) with

id. § 393.11. This being the case, the parties

and the District Court below have all de-

scribed § 393.11 as concerned with involuntary admission to non-secure residential settings, and we will do the same.
5. A support plan may call for varying degrees of restrictive settings from a developmental disabilities center (most restrictive) to even the client’s own home. See Fla. Stat. § 393.0651(5).

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736 FEDERAL REPORTER, 3d SERIES

As we have said, the Florida circuit

court that makes the first involuntary ad-

mission decision retains jurisdiction over

the order and it cannot be changed with-

out permission from that court. See id.

§ 393.11(11). Although the Florida state

circuit court must annually review a

client’s placement in a secure setting,

Florida law does not require the court to

perform an adversarial, state-initiated, pe-

riodic review of a client who has been in-

voluntarily admitted to services in a non-

secure setting. Compare id. § 916.303(3)

(review for secure settings) with id.

§ 393.11 (admission to residential ser-

vices). A client who disagrees with a sup-

port plan decision may challenge it in an

administrative

proceeding,

id.

§ 393.0651(8), but the hearing officer can

do nothing to change the original order of

involuntary admission. Rather, upon issu-

ance of the involuntary admission order,

the client is notified in writing that he or

she may challenge that order by way of a

habeas petition submitted to the circuit

court, the only body with power to ever

change the order. Id. § 393.11(13).

II. J.R.
J.R. is an intellectually disabled 48 yearold man with an IQ of 56 who functions at the level of a 7 year-old. It is not disputed that ‘‘although J.R.’s mental retardation will always exist, his potential for dangerousness TTT can change’’ because ‘‘J.R. can develop skills that mitigate the effect of his disability and aid him in his ability to live independently.’’
In 2000, J.R. was charged with sexual battery in Lee County, Florida. In 2001,

the Lee County Circuit Court found J.R. incompetent to stand trial and involuntarily committed him to the Department of Children and Family Services (DCF), a precursor to the APD. In 2004, J.R. was involuntarily admitted to ‘‘nonsecure’’ residential services, pursuant to § 393.11. The circuit court explained that ‘‘the purpose to be served by residential care is vocational training and social skills training.’’ The order contains no end date.
J.R. has lived in several different group homes since the original involuntary admission order. Despite J.R.’s admission order specifying ‘‘non-secure’’ residential services, his movements and freedom are significantly limited. As the District Court explained, ‘‘[i]f he were to ‘elope,’ the police would probably be called to return him’’ to his group home. That being said, the scope of the limitations on J.R.’s movements has changed and will continue to change with periodic alterations to his support plan pursuant to § 393.0651. Still, as we have already observed, the circuit court has not held a hearing on J.R.’s continued involuntary admission order since 2005.
Since 2007, J.R. has been assigned a ‘‘support coordinator,’’ Jordan Goldstein, pursuant to Fla. Stat. § 393.063(37).6 J.R.’s most recent ‘‘support plan’’ for 2012 was crafted with input from J.R.; Mr. Goldstein; Gregory Jansen, a certified behavior analyst overseeing J.R.’s case; and Katherine DeBierre, J.R.’s attorney. As a part of this support plan, J.R. was able to move to a new residence of his choice closer to his family. But Mr. Jansen did not recommend releasing J.R. from invol-

6. Under the statute, a ‘‘Support coordinator’’ is
a person who is designated by the agency to assist individuals and families in identifying their capacities, needs, and resources TTT and monitoring and evaluating the delivery

of supports and services to determine the extent to which they meet the needs and expectations identified by the individual, family, and others who participated in the development of the support plan. Fla. Stat. § 393.063(37).

J.R. v. HANSEN
Cite as 736 F.3d 959 (11th Cir. 2013)

965

untary admission. Neither has J.R. filed a habeas petition with the circuit court to be released from the involuntary admission order.
III. Standard of Review
‘‘We review de novo the district court’s ruling on the parties’ cross-motions for summary judgment.’’ Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir.2011).
In a facial challenge, ‘‘the challenger must establish that no set of circumstances exist under which the Act would be valid.’’ Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th Cir.2001) (quotation marks omitted).
IV. Discussion
[2] The Due Process Clause of the Fourteenth Amendment provides that a state shall not ‘‘deprive any person of life, liberty, or property, without due process of law.’’ U.S. Const. amend. XIV, § 1. ‘‘[A] § 1983 claim alleging a denial of procedural due process requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionallyinadequate process.’’ Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.2003).
As the District Court explained, ‘‘[b]y its plain language, [§ 393.11] makes loss of liberty a necessary concomitant to involuntary admission to residential services.’’ See also Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979) (recognizing that ‘‘civil commitment for any purpose constitutes a significant deprivation of liberty’’); Kinner v. State, 382 So.2d 756, 760 (Fla. 2d DCA 1980)

(describing § 393.11 as providing for the deprivation of liberty), rev’d on other grounds, 398 So.2d 1360 (Fla.1981). Thus, as the APD concedes, the first two elements of the test for a claim of the denial of due process are easily established here. The question left for us to answer is whether § 393.11 provides constitutionally adequate process.
A. Overview
[3, 4] Constitutionally adequate process is a flexible concept that ‘‘cannot be divorced from the nature of the ultimate decision that is being made.’’ Parham v. J.R., 442 U.S. 584, 608, 99 S.Ct. 2493, 2507, 61 L.Ed.2d 101 (1979). It is well settled that people who are lawfully involuntarily committed must be released once the grounds for the initial commitment no longer exist. See O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975) (where a plaintiff challenged his continued confinement in a mental institution and the Court explained that ‘‘even if his involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed’’); Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972) (where the Court held that ‘‘due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed’’). Thus, when someone is civilly committed, there must be some form of periodic post-commitment review. See Parham, 442 U.S. at 607, 99 S.Ct. at 2506 (holding that continuing need for commitment must be reviewed periodically).7

7. See also, Doe v. Austin, 848 F.2d 1386, 1396 (6th Cir.1988) (explaining that ‘‘due process requires that some periodic review take place during’’ a continued involuntary commitment), cert. denied, 488 U.S. 967, 109 S.Ct.

495, 102 L.Ed.2d 531 (1988); Clark v. Cohen, 794 F.2d 79, 86 (3rd Cir.1986) (explaining that a plaintiff ‘‘was entitled to periodic review of her commitment’’), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404

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736 FEDERAL REPORTER, 3d SERIES

[5] To determine what process is due, courts turn to the test from Mathews v. Eldridge, which requires the balancing of a number of considerations:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The Supreme Court in Mathews admonished courts employing this test to recognize that ‘‘procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.’’ Id. at 344, 96 S.Ct. at 907.
In facial due process challenges, we have looked to the statute as written to determine whether the procedure provided comports with due process. We have declined to simply rely on the defendant’s description of how the statute operates in practice. See Catron v. City of St. Petersburg, 658 F.3d 1260, 1269 (11th Cir.2011) (holding a statute unconstitutional facially and as-applied because as written it failed to provide ‘‘constitutionally adequate procedural protections’’ despite the City’s arguments about how the statute operates in practice).

B. Relevant Precedents
We are cognizant—and thankful—that in our task of applying the flexible balancing test of Mathews to the case at hand we do not write on a blank slate. Two cases, one from the Supreme Court and one from a panel of this Circuit, are especially instructive in helping us consider what periodic review process is due in the civil commitment context: Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) and Williams v. Wallis, 734 F.2d 1434 (11th Cir.1984).
1. Parham v. J.R.
In Parham, the Supreme Court examined the process due both before and after the voluntary commitment of children by their parents to state mental institutions. 442 U.S. at 587, 99 S.Ct. at 2496. In that case, Georgia state hospital superintendents were ‘‘given the power to admit temporarily any child for ‘observation and diagnosis’ ’’ and to, if ‘‘find[ing] ‘evidence of mental illness’ and that the child is ‘suitable for treatment,’ ’’ admit the child ‘‘ ‘for such period and under such conditions as may be authorized by law.’ ’’ Id. at 591, 99 S.Ct. at 2498. After that time, ‘‘the superintendent TTT [had] an affirmative duty to release any child ‘who [had] recovered TTT or who [had] sufficiently improved [such] that the superintendent determines that hospitalization TTT is no longer desirable.’ ’’ Id.
A class action suit challenged the scheme arguing that the children had a right to notice and a hearing before commitment. Id. at 596–98, 99 S.Ct. at 2501– 02. The Supreme Court ultimately disa-

(1986); cf. Williams v. Wallis, 734 F.2d 1434, 1438 (11th Cir.1984) (upholding a scheme that provided period reviews of continued commitment and remarking that ‘‘[t]he frequency of the evaluations also reduces the risk that the patient will be confined any

longer than necessary’’); Hickey v. Morris, 722 F.2d 543, 549 (9th Cir.1983) (holding that a statute adequately protected a plaintiff’s interest with ‘‘regular review of his continued confinement’’).

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greed. In discussing the issue, however, the Court did
conclude that the risk of error inherent in the parental decision to have a child institutionalized TTT is sufficiently great that some kind of inquiry should be made by a ‘‘neutral factfinder’’ to determine [if] the statutory requirements for admission are satisfiedTTTT It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it is necessary that the child’s continuing need for commitment be reviewed periodically by a similarly independent procedure. Id. at 606–607, 99 S.Ct. at 2506 (emphasis added) (citations omitted). But, importantly, Parham held that that procedure did not have to include adversarial judicial review. The Court explained that ‘‘[o]ne factor that must be considered is the utilization of the time of TTT behavioral specialists in preparing for and participating in hearings rather than performing the task for which their special training has fitted them.’’ Id. at 605–06, 99 S.Ct. at 2506. Where, ‘‘the questions are essentially medical in character,’’ the Court rejected ‘‘the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist TTT to an untrained judge or administrative hearing officer after a judicial-type hearing.’’ Id. at 609, 99 S.Ct. at 2507–08. ‘‘Thus, [review by] a staff physician will suffice, so long as he or she is free to evaluate independently the child’s TTT need for treatment.’’ Id. at 607, 99 S.Ct. at 2507.
Though the Court focused primarily on the admission procedures, the Court did note several times that ‘‘the superintendent of each hospital is charged with an affirmative statutory duty to discharge

any child who is no longer TTT in need of therapy.’’ Id. at 615, 99 S.Ct. at 2510 (emphasis added); see also id. at 591, 99 S.Ct. at 2498. The Court explained that ‘‘[w]e have held that the periodic reviews described in the record reduce the risk of error in the initial admission and thus they are necessary.’’ Id. at 617, 99 S.Ct. at 2511 (emphasis added). The Court remanded for determining exactly ‘‘what process is due to justify continuing a voluntary commitment,’’ but suggested the admission procedure principles should be considered. Id. at 619, 99 S.Ct. at 2512.
2. Williams v. Wallis
In Williams v. Wallis, this Court directly considered the process required in a periodic review. Williams involved a challenge to ‘‘Alabama’s procedures for the release of patients committed to the state’s mental health system after being found not guilty TTT by reason of insanity.’’ 734 F.2d at 1436. Alabama’s scheme provided for ‘‘treatment team[s],’’ of medical professionals who would ‘‘devise[ ] an individualized treatment plan’’ with the ‘‘goal for acquittees [to] transfer to a less restrictive environment’’ and eventually be released. Id. The team would review the acquittee every 60 to 90 days. Id. The Court further described how
[t]he decision to release an acquittee is usually initiated by the treatment teamTTTT After the team recommends release, an acquittee not classified as special can be released with the approval of the forensic unit director of the hospital to which he is committed. The proposed release of special patients [who are considered dangerous to themselves and others] must be reviewed by the hospital’s superintendent or his designee. The reviewing authority may communicate the proposed release to the committing court, the district attorney,

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the acquittee’s family, and others, or may order further treatment for, or evaluation of, the acquittee. The hospital superintendent then makes the final decision whether to release the special patient.
Id.
The Court found that ‘‘[t]he[se] nonadversary proceedings do not create an undue risk of erroneous deprivation of liberty, and substituting an adversarial element would not provide significant increased protection against such risk.’’ Id. at 1439. The Court explained its reasoning as follows:
Hospitals and their medical professionals certainly have no bias against the patient or against release. Therefore, we can safely assume they are disinterested decision-makers. In fact, the mental health system’s institutional goal—i.e., transfer to a less restrictive environment and eventual release—favors release. Other factors also favor release, including a perennial lack of space and financial resources, which militates against any motivation to unnecessarily prolong hospitalization, and including the medical professional’s pride in his own treatment. The frequency of the evaluations also reduces the risk that the patient will be confined any longer than necessary.
Id. at 1438 (emphasis added). This Court also explained that ‘‘[t]o impose an adversarial atmosphere upon the medical decisionmaking process would have a natural tendency to undermine the beneficial institutional goal of finding the least restrictive environment including eventual release.’’ Id. at 1439 (emphasis added). Finally, the Court also reviewed Alabama’s habeas procedures and found this ‘‘secondary or backup procedure ’’ sufficient given that ‘‘the release decision is first addressed in

the nonadversary proceedings described above.’’ Id. at 1440 (emphasis added).
C. Guiding Principles
[6] Parham and Williams—and persuasive precedents from other circuits—yield at least four guiding principles for our Court in analyzing Florida’s involuntary admission to residential services scheme which we consider here. First, with respect to deprivations of liberty in the form of civil commitments, some form of periodic review is required to protect against the erroneous deprivation of liberty. But adversarial review—arguably the gold standard of due process protections, see Goldberg v. Kelly, 397 U.S. 254, 266–69, 90 S.Ct. 1011, 1020–21, 25 L.Ed.2d 287 (1970) (requiring a hearing before ending welfare benefits)—is not necessarily required. See Parham, 442 U.S. at 607–08, 99 S.Ct. at 2506–07; Williams, 734 F.2d at 1439; see also Austin, 848 F.2d at 1396 (holding that ‘‘due process requires that some periodic review take place’’ but that the Sixth Circuit ‘‘cannot say that due process requires a periodic judicial review’’); Hickey, 722 F.2d at 549 (‘‘Due process does not always require an adversarial hearing.’’).
[7] Second, adversarial judicial review is not necessary to protect against the erroneous deprivation of liberty where medical professionals are well positioned and mandated to consider the propriety of ongoing commitment. In other words, where medical professionals’ periodic reviews must consider release, courts are generally satisfied that the patient’s liberty rights are protected. See Parham, 442 U.S. at 615, 99 S.Ct. at 2510 (noting that the hospital superintendent ‘‘is charged with an affirmative statutory duty to discharge any child who is no longer mentally ill or in need of therapy’’); Williams, 734 F.2d at 1439 (explaining that periodic reviews occur with ‘‘the beneficial institu-

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tional goal of finding the least restrictive environment including eventual release ’’ (emphasis added)); see also Hickey, 722 F.2d at 549 (holding that adequate procedures included ‘‘regular review of [the plaintiff’s] continued confinement’’ (emphasis added)); cf. Austin, 848 F.2d at 1395–96 (explaining that periodic review must be of whether confinement should continue); Clark, 794 F.2d at 86 (describing the periodic reviews as having questioned whether the plaintiff should be afforded release).
[8] Third, adversarial judicial review is not necessary to protect against the erroneous deprivation of liberty where medical professionals are well positioned and mandated to act when an ongoing commitment is no longer proper. See Parham, 442 U.S. at 607, 99 S.Ct. at 2506 (suggesting that reviewer of ‘‘the child’s continuing need for commitment’’ should have authority to release); Williams, 734 F.2d at 1436 (where the treatment team reports directly to the superintendent who has the power and duty to release). This principle present in Parham and Williams was captured well in Clark v. Cohen, where a plaintiff was given periodic medical and psychological reviews that ‘‘consistently recommended that [the plaintiff] be released TTT but the reviewers lacked the authority to implement their recommendations.’’ 794 F.2d at 86. The Third Circuit found the scheme to violate due process because the review ‘‘required by the due process clause is not a moot court exercise. The [reviewers] must have the authority to afford relief.’’ Id.
[9] Fourth, the availability of adversarial judicial review in the form of habe-

as proceedings serves as a backup plan to protect against erroneous deprivations of liberty. See Williams, 734 F.2d at 1440; see also Hickey, 722 F.2d at 549 (describing how the statute’s nonadversarial review is backstopped by the ‘‘court’s discretionary power’’ and the potential for ‘‘habeas relief’’).
V. Application
[10–12] Our task is to determine whether the Florida Statute really does provide procedures that protect J.R. from the risk of erroneous deprivations. Given the arguments made by the APD and the District Court’s finding of ‘‘implicit’’ obligations upon the APD in this case, we believe that the answer to that question would be aided by the statutory interpretation of the Supreme Court of Florida, the ultimate arbiter of Florida law. See Forgione, 93 F.3d at 761.
A. Arguments
[13] J.R. argues that § 393.11 does not pass constitutional muster because it does not entitle involuntarily admitted persons to periodic review of the propriety of continued commitment ‘‘by a decision maker that has authority to release them from commitment.’’ Thus, J.R. argues the involuntary admission scheme impermissibly risks an erroneous deprivation of liberty in violation of Mathews, Parham, and Williams and is unconstitutional on its face. Based on this, J.R. says that ‘‘[h]is liberty is presently infringed pursuant to an unconstitutional statutory scheme that contains no adequate procedure for the review and termination of the admission order and restoration of his liberty.’’ 8

8. The APD argues that ‘‘the facts of J.R.’s case undermine his challenge to section 393.11’’ because ‘‘[he] does not allege that it would even be appropriate to release him from his involuntary admission to services.’’ In other

words, the APD suggests that because ‘‘J.R.’s
counsel has never asserted that J.R. actually should be released from his order of involun-
tary admission to residential services’’ that ‘‘J.R. alleges that he risks a violation of his

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The APD responds that ‘‘taken alone, this Court’s ruling in Williams v. Wallis rebuts each of J.R.’s argument[s].’’ First, the APD argues that J.R.’s procedural due process rights are protected because § 393.0651(5) allows periodic review of support plans designed to find the ‘‘most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives for client progress.’’ See Fla. Stat. § 393.0651. The APD explains, without pointing to anything explicit in the Florida statute, that ‘‘[s]imilar to the ‘treatment teams’ described in Williams, the client and the client’s providers may use the support plan to recommend further review of a client’s order of involuntary admission’’ (emphasis added). Second, the APD argues that the availability of habeas corpus and the fact that upon an order of involuntary admission a person is notified in writing of the availability of habeas, see Fla. Stat. § 393.11(13), is sufficient to protect against an erroneous deprivation of liberty. We have noted with interest that the APD did not in its brief

endorse any of the ‘‘implied obligations’’ discussed in the District Court order.
During oral argument before this Court, however, the APD insisted repeatedly that though there are no explicit procedures or requirements provided in the Florida statute for either examining the propriety of continued involuntary admission or seeking the release of a client from an improper involuntary admission order, that such considerations were ‘‘part of the analysis’’ involved in support plan review. The APD argued as well that the Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook, which was not in the record, specifies that such residential services are provided based on ‘‘medical necessity.’’ Also newly relying on this handbook, the APD says, ‘‘the intent of waiver services as noted in our brief is to help individuals live safely in the community as opposed to an institutional setting. That is the entire point of these services.’’ Thus the APD argued it was clear that the statute calls for periodic review of J.R.’s continued involuntary admission to residential services.9

constitutional rights, but fails to allege that any actual violation has occurred.’’
But the question of whether or not J.R. has a right to be released today does not preempt the constitutional question presented here. It is clear that a state can deprive J.R. of his liberty ‘‘with due process of law.’’ U.S. Const. amend. XIV, § 1. ‘‘Due process of law,’’ however, requires that some procedural protection must be given to decrease the risk that a permissible deprivation is arrived at erroneously. The question therefore is simply whether the process afforded to J.R. comports with the Constitution because it does not impermissibly risk an erroneous deprivation. See Mathews, 424 U.S. at 344, 96 S.Ct. at 907; Catron, 658 F.3d at 1269.
The APD repeatedly suggests that J.R. is, essentially, the wrong plaintiff to bring this case. In fact, J.R. is the right plaintiff, even if less than sympathetic, to challenge the facial validity of the statute because for the past nine years he has been subjected to an involuntary admission order. He has been

deemed as lacking the ability to live on his own because doing so would either risk the threat of physical harm to himself or to others. See Fla. Stat. § 393.11(8)(b). If or when those conditions cease to exist, J.R. is entitled to be released from that involuntary admission order. See Jackson, 406 U.S. at 732, 92 S.Ct. at 1855. Thus, if the process provided to him under the statute is not ensuring that there is only a constitutionally acceptable risk, as defined by Mathews, that he will be kept involuntarily admitted past the time that those conditions cease to exist, then J.R. is being subjected to an ongoing Constitutional violation. See id. at 738, 92 S.Ct. at 1858; cf. Parham, 442 U.S. at 606–07, 99 S.Ct. at 2506.
9. The APD also alludes to the argument that J.R. is deserving of less process than the plaintiffs in Williams or Parham—and potentially not even periodic review—because the involuntary admission to residential services is less intrusive than confinement to a mental institution. And at oral argument, the

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In summary, the APD argues that finding that the process laid out in § 393.11 does not provide constitutionally sufficient procedures amounts to this Court deciding that it is ‘‘going to assume that the [APD] is not going to do what they’re obligated to do.’’
B. Analysis
The problem for this Court is that it is not clear to us that the APD is ‘‘obligated to do’’ what the APD suggested at oral argument it is obligated to do: periodically review the involuntary admission orders of J.R. and people like him. The APD has pointed to nothing explicit in the statute indicating that an obligation exists and has offered no evidence of procedures in place to require periodic review of the involuntary commitment status of these people.
We cannot wholly disagree with J.R.’s argument that the face of the statute does not provide process that comports with the requirements of the relevant precedent.

First, the APD admits that the statute does not explicitly require the APD to periodically review the propriety of J.R.’s continued involuntary admission order.10 The statute requires only that periodic support plan reviews ask whether the client has been placed in ‘‘the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives for client progress.’’ Fla. Stat. § 393.0651. This contrasts with the requirements for an order involuntarily admitting a person to residential services, where a circuit court must find both (1) that ‘‘[p]lacement in a residential setting is the least restrictive and most appropriate alternative to meet the person’s needs’’ and (2) that the person ‘‘lacks basic survival and self-care skills to such a degree that close supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being’’ or would leave the person ‘‘likely to physically injure others if al-

APD closed by arguing that the involuntary admission order was more or less meaningless because there is no difference between ‘‘involuntary’’ and ‘‘voluntary’’ admission to residential services. We reject these arguments as legally and factually incorrect, and defeated by the APD’s own concessions.
First, the District Court was right to reject the APD’s argument that it was of great relevance that ‘‘J.R. was not ‘committed’ to a state institution but was, instead, ‘assigned’ to community-based residential services.’’ As the District Court pointed out, ‘‘[b]y its plain language, the statute makes loss of liberty a necessary concomitant to involuntary admission to residential services,’’ and Florida courts have interpreted § 393.11 as doing so. See Kinner, 382 So.2d at 760. In its brief, the APD conceded as much when it explained that the first element of a claim alleging the denial of procedural due process—a deprivation of a constitutionally protected liberty interest—is easily met here.
Second, pointed out by the District Court, and demonstrated by the record established below, an involuntarily committed individual cannot simply walk away from a group home

and will be hauled into court should he choose to do so. The District Court found that ‘‘J.R.’s liberty has been infringed by his involuntary assignment to a group home in a community where he does not choose to live.’’
Finally, Parham made clear that voluntary commitments carry less stigma than involuntary commitments. See Parham, 442 U.S. at 600, 99 S.Ct. at 2503 (describing how the community’s reaction to a child voluntarily committed ‘‘need not be equated with the community response resulting from being labeled by the state as delinquent, criminal, or mentally ill and possibly dangerous’’). Thus, neither legal precedent nor the facts of his case support a finding that J.R. deserves less protection than the plaintiffs in either Parham or Williams. Therefore, the principles espoused in those cases apply here.
10. Indeed, as APD puts it, citing no specific provision of the statute, ‘‘the client and the client’s providers may use the support plan to recommend further review of a client’s order of involuntary admission’’ (emphasis added).

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lowed to remain at liberty.’’ Id. § 393.11(8)(b). In other words, periodic support plan reviews consider only half of the ultimate question of whether it is necessary for someone to be involuntarily admitted to residential services.
As the APD pointed out in its brief, there are currently 20,000 people on the waiting list to voluntarily receive HCBS Medicaid services, including the residential services that J.R. receives. Thus the benefits provided to APD clients clearly continue beyond when one reaches the point of no longer being a danger to himself or others. As J.R.’s involuntary commitment order itself explains, in residential services he receives ‘‘vocational training and social skills training.’’ Conceivably, J.R. could continue to make progress with respect to his vocational and social skills by remaining in some form of residential services long after he is no longer a danger to himself or others.11 Thus the regime established in § 393.11 contrasts to those in Parham and Williams, where the statutorily mandated goal of the periodic reviews was to consider release. See Parham, 442 U.S. at 615, 99 S.Ct. at 2510 (noting ‘‘an affirmative statutory duty to discharge’’ when warranted); Williams, 734 F.2d at 1438 (describing ‘‘eventual release’’ as a central goal of periodic medical reviews).
Second, the statute does not provide procedures for the APD if it were to decide someone should be released from an involuntary admission order. Nothing on the face of § 393.0651 mandates that the APD, having found a client to no longer be a danger to himself or to others, should

petition the circuit court, the only body with the power to alter the order. See Fla. Stat. § 393.0651; id. § 393.11(11).
In contrast, there are a few specific instances in which the statute does call for an involuntary admission order to nonsecure residential services to be reviewed by the court. Section 393.115, ‘‘Discharge,’’ specifies that where a minor is involuntarily admitted to residential services, upon the client reaching the age of majority, ‘‘the [APD] shall file a petition to determine the appropriateness of continued residential placement on an involuntary basisTTTT in the court having continuing jurisdiction over the case.’’ Id. § 393.115(1)(b). And § 393.11(9)(b) explains that ‘‘[a]ny minor involuntarily admitted to residential services shall, upon reaching majority, be given a hearing to determine the continued appropriateness of his or her involuntary admission.’’ Id. § 393.11(9)(b). That the statute provides for instances in which the APD must approach the admitting court calls into question the idea that it has an ‘‘obligation’’ to do so in other circumstances.
We are also aware that the Florida legislature has required periodic judicial review in other contexts. For example, the District Court recognized that an admitting court may choose to admit an intellectually disabled person into secure residential services under Fla. Stat. § 916.303(3). In that context, the secure placement is reviewed annually at a hearing. Id. § 916.303(3). Florida’s mental illness statute contains similar provisions, by which people involuntarily committed to either

11. Also, we do not read the statute to equate ‘‘medical necessity’’ with the client of APD being a danger to himself or others. It is not hard to see that HCBS Medicaid waiver services are provided out of medical necessity to individuals who are not at a great risk of harm to self or others. If every person eligible for HCBS Medicaid waiver services were

at a great risk of harm to self or others, one would have to ask why the state of Florida has allowed 20,000 individuals to stay on the HCBS Medicaid waiver services waitlist. The record contains no evidence to support a finding that any person admitted to residential services, voluntarily or involuntarily, must pose a threat to self or others.

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inpatient or outpatient services receive periodic review from either the committing court or a hearing officer with the authority to afford release. See id. § 394.467(7); id. § 394.4655(7). And even people committed under Florida’s Sexually Violent Predators Act receive periodic judicial review by the committing court. Id. § 394.918(1), (3). It is clear, therefore, that where the Florida legislature wishes to provide periodic review of continued commitments, it has often said so explicitly.
In contrast, in Parham, the Court emphasized the statutory mandate to afford release to a child no longer needing commitment and that the decisionmaker in charge of a child’s periodic review should have the authority to afford release. See 442 U.S. at 607, 615, 99 S.Ct. at 2506, 2510. In Williams, a procedure existed by which a treatment team finding commitment no longer necessary was to report their recommendation to the hospital superintendent with the power and duty to afford release. See 734 F.2d at 1436.
Despite the distinguishing characteristics of the statutes reviewed in Parham and Williams, the District Court, employing the doctrine of constitutional avoidance, did find that the statute contained plausible implied obligations. The District Court explained, in pertinent part:
While section 393.11 contains no provision expressly describing APD’s responsibilities should the time come when a developmentally disabled client no longer satisfies the involuntary admission requirements, the statute can and should be read to imply an obligation on the part of APD to petition the circuit court to end the ‘‘hold’’ on a[ ] client who is no longer deemed to be a danger to himself or others. The circuit court’s order, after all, binds not only the client who is admitted to residential services

but also the agency that is required to provide the ordered services. If APD were to determine that a client had reached the point of no longer meeting the involuntary admission requirements, the agency could not on its own authority cease to provide those services. Instead, acting in its own best interests as well as those of the individual the agency was ordered to serve, APD would have to petition the appropriate circuit court for an order releasing the agency from its responsibility to provide those services and, at the same time, releasing the client from the order of involuntary admission. If, for whatever reason, APD failed to seek a client’s release from an involuntary admission no longer deemed necessary, or if the client were to disagree with an agency assessment that release would not be appropriate, then—as a safeguard—a petition for writ of habeas corpus may be filed ‘‘[a]t any time and without notice’’ by or on behalf of the client.
If the District Court is right about the APD’s obligations under the statute, it may be constitutional. We still have some concerns that the statute does not, even under this formulation, require that the APD consider the propriety of the continued involuntary admission order. However, we also recognize that if the APD were held to this implied obligation, it would also, arguably, be required to periodically consider whether the ‘‘hold’’ should be lifted.
Although we certainly share the District Court’s desire to avoid the constitutional question, we are not comfortable merely affirming its ruling based on implied obligations not explicit on the face of the statute. See Catron, 658 F.3d at 1269. Federal Courts are not the arbiters of Florida law; that responsibility rests squarely with the Supreme Court of Flori-

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da. In other words, our assertion that the statute ‘‘can and should be’’ read a certain way in order to provide constitutionally sufficient process does not make it such that the statute must be read that way. For that reason, we certify the following questions to the Supreme Court of Florida.
Questions Certified
1) Does ‘‘support plan’’ review under Fla. Stat. § 393.0651 require the Agency for Persons with Disabilities to consider the propriety of a continued involuntary admission to residential services order entered under Fla. Stat. § 393.11?
2) Is the Agency for Persons with Disabilities required, pursuant to Fla. Stat. § 393.0651 and/or Fla. Stat. § 393.11, to petition the circuit court for the release from an involuntary admission order in cases where the APD determines that the circumstances that led to the initial admission order have changed?
3) Does Fla. Stat. § 393.062 et. seq. provide a statutory mandate to meaningfully periodically review involuntary admissions to non-secure residential services consistent with the commitment schemes discussed in Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) and Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984)?
QUESTIONS CERTIFIED.
,

Monique WILKERSON, Plaintiff–Appellee,
v.
Thedious SEYMOUR, Dekalb County Police Officer, O.B. Parker, Dekalb County Police Sergeant, Defendants– Appellants.
No. 12–15938.
United States Court of Appeals, Eleventh Circuit.
Oct. 30, 2013.
Background: Arrestee brought action against two police officers under § 1983 alleging false arrest. The United States District Court for the Northern District of Georgia denied officers’ motion for summary judgment on grounds of qualified immunity. Officers appealed.
Holdings: The Court of Appeals, Restani, United States Court of International Trade Judge, sitting by designation, held that:
(1) first officer was not entitled to qualified immunity from false arrest claim, and
(2) second officer was entitled to qualified immunity from false arrest claim.
Affirmed in part and reversed in part.
1. Federal Courts O579 Court of Appeals had jurisdiction over
police officers’ interlocutory appeal of District Court’s denial of qualified immunity in arrestee’s § 1983 action as a collateral order. 28 U.S.C.A. § 1291; 42 U.S.C.A. § 1983.
2. Federal Courts O776 The Court of Appeals reviews a denial
of qualified immunity de novo.