Judge rules transcript of hospitalization hearing is public
By Susan Smallheer
Staff Writer | February 23,2013
BRATTLEBORO — The mystery of what prompted last month’s heightened security at Brattleboro area schools and frightened half the school population enough to stay home may soon be solved.
Judge John Wesley granted access to the records of an involuntary hospitalization hearing from last month that sparked upgraded security measures by Brattleboro area school authorities because of a perceived threat to school students.
Wesley granted a request by the Brattleboro Reformer, which had appealed after it was denied access to the file of someone only identified as K.G., who was the subject of a hospitalization hearing in Windham Family Court in Brattleboro on Jan. 25.
Wesley had refused to grant the state’s request to hospitalize K.G., who is in his 20s, and at one point was a patient at the Brattleboro Retreat. The records of the hearing will be released in 10 business days, allowing K.G.’s attorney time to consider legal options, the judge said.
During a lengthy discussion of the case and case law from the bench, the judge said that once the transcript was released, it would become clear — as it was to him — that whatever statements K.G. made didn’t really warrant the school’s reaction.
The judge said “the direct link .... of a threat to schoolchildren was not there.”
The judge said K.G. had made statements “to a loved one ... that others may be at risk” and that he wanted to harm himself and guns might be involved.
“There are other issues in the K.G. case,” the judge said, that might warrant additional public concern, later referring to the closure of the Vermont State Hospital because of Tropical Storm Irene.
More than a dozen state hospital patients were transferred to the Brattleboro Retreat, which now houses a 14-bed state psychiatric facility.
The Reformer’s day managing editor, Robert “Bob” Audette, argued Friday that knowing more about the case, and what specific threats were made that triggered security measures at virtually every school in Windham County, was in the public’s interest.
“It is in the public interest to know the name of the person who made the alleged threats, the nature of the threats and the institution or person who requested the involuntary commitment. This information bears on Windham County’s ability to protect its children,” Audette told the judge.
Audette detailed the events surrounding the schools’ reaction and decision to beef up security, starting with a “vague” robo call to hundreds of area parents Sunday night before school the next day.
The call was so vague, mentioning unspecified threats to children, that it created widespread concern and fear, and about half of all the students in the supervisory union stayed home or were kept home that Monday, Audette noted.
The editor noted the Brattleboro town manager followed up with a press release the next day saying that “nonspecified threats regarding school-age people” by a person who might be returning to the area had prompted the town and school response.
Town Manager Barbara Sondag said the town and schools decided to take “the threats seriously, (and) representatives from police, fire and town administration met to develop a response plan.”
The Brattleboro town press release mentioned the December shootings that left 20 first-grade children dead as well as six teachers at an elementary school in Newtown, Conn., as a contributing factor to the heightened response.
But both town and school officials at the time refused to say what exactly prompted the heightened security.
“Many parents were concerned about the lack of information available to them,” Audette said.
Wesley said there was no doubt the late January events warranted disclosure to the public under Vermont Public Access to Court Records rules and exceptions.
He said K.G., according to an earlier Vermont Supreme Court decision regarding the public’s right to know regarding mental health cases, did not have a guaranteed right to privacy.
“There is no presumption of confidentiality,” the judge said, quoting the Vermont Supreme Court’s decision on Frederick Koch, a former Brattleboro man charged with hitting a Stowe man deliberately with his car. Koch had a history of mental illness. The Rutland Herald and the Brattleboro Reformer successfully overturned Wesley’s 1997 decision closing Koch’s mental health hearing.
Wesley said the Department of Mental Health had sought to have K.G. hospitalized because of threats he had made about himself and guns. Wesley denied the state’s attempt to have him hospitalized, which requires a finding that someone is a danger to himself or the public.
Wesley denied an attempt from the attorney representing K.G., Jack McCullough, director of the Mental Health Law Project of Vermont Legal Aid, to dismiss the Reformer’s complaint on the grounds that Audette was not a lawyer and that corporations should be represented by lawyers.
Wesley said the law allowed small companies to represent themselves and Audette was allowed to continue.
McCullough also argued the record should remain sealed. The judge did grant McCullough’s request for a delay so the could consult with K.G. and determine whether to file an appeal. McCullough told the judge he had been unable to get in touch with K.G.
The judge did not grant a request from McCullough to redact the hearing transcript from any identifying information about K.G., which McCullough said would be highly prejudicial since he was never charged with a crime, unlike cases cited by Wesley that involved criminal charges.
Attending the hearing was attorney Elizabeth Wohl, representing the Retreat. Wohl said the Retreat had no opinion on the Reformer request. An attorney for the Department of Mental Health, Ira Morris, who handled K.G.’s case, was also notified to appear, but declined to attend the hearing, the judge pointed out.
The judge noted that more and more mental health cases are coming before judges in family court in Brattleboro because many state hospital patients are now being treated at the Retreat, a private psychiatric hospital.