State of Vermont

Superior Court

 

Civil Division

Lamoille County

Docket No.

 

 

VERIFIED PETITION FOR WRIT OF HABEUS CORPUS

 

Comes now Petitioner, Gertrude Miller, Attorney for  William Bennett in the above referenced matter, and pursuant to 12 VSA subsections 3951 – 3985, and VRCP 80.4, hereby petitions this Honorable Court for a Writ of Habeas Corpus and in support thereof states on information and belief as follows:

 

Background:

On April 24, 2006, Mr. Bennett was arraigned on two counts of  Lewd and

Lascivious Conduct (Copy of information, affidavit and certified copy of docket

sheet is attached as Exhibit A). On November 16, 2006, pursuant to Findings and

Order of the Caledonia District Court signed by the Honorable Judge Kathleen

Manley, and based on a Stipulation signed by the parties ( Please see exhibit B)

Mr. Bennett was placed in the Custody of the Commissioner of  Department of

Disabilities, Aging and Independent Living ( “DAIL”)  pursuant to 18 VSA 8820-

8846, a/k/a “Act 248” which is Vermont’s Civil Commitment  Statute.

The Act 248 Order has continued in place, subject to certain modifications, up until

the present date. Mr. Bennett currently resides pursuant to  DAIL’s custody at a

crisis house in Johnson, Vermont, run by Sterling Area Services.

 

The 2006 Findings and Order did not and do not give the Commissioner legal

authority to have custody of  Mr. Bennett:

COUNT ONE: The Findings and Order did not track 18 VSA Chapter 206 ( Act 248) “presents a danger of harm to others” :

1.     18 VSA 8843( c) ( please see Exhibit C) sets forth the criteria for an Order under

18 VSA Chapter 206:

 “If the court finds that the respondent is a person in need of custody, care, and

habilitation, it shall order the respondent committed to the custody of the

commissioner for placement in a designated program….”

18 VSA 8839  (3) defines “ Person in need of Custody, Care, and Habilitation” as

(A) a mentally retarded person;(B) who presents  a danger of harm to others; and

for whom appropriate custody, care, and habilitation can be provided by the

commissioner in a designated program….”

Through the November 17, 2006 Findings and Order, the Court found that Mr.

Bennett “presents a danger of harm to others” Please see  Exhibit B, top of page 2).

18 VSA 8839 (1) defines “Danger of Harm to others” as:

“ the person has inflicted or attempted to inflict serious bodily injury to another or

has committed an act that would constitute  a sexual assault or lewd or lascivious

conduct with a child.” Mr. Bennett was not charged with Sexual Assault or Lewd

or Lascivious Conduct with a Child (13 VSA section 2602). Instead, Mr. Bennett

was charged with Lewd and Lascivious Conduct (13 VSA 2601). Further, the

Lewd and Lascivious Conduct statute does not  include an element of Serious

Bodily Injury.

( please see Exhibit D, 13 VSA section 2601  “Lewd and Lascivious Conduct”)

 

COUNT II:  The Findings and Order did not have Guardian ad Litem or Guardian participation and thus the Findings and Order do not comply with VRFP 6.1 Vermont Rule of Family Procedure 6.1 provides for “Representation by Attorney

and Guardians Ad Litem in Specified Proceedings” ( please see exhibit E). VRFP

6.1 (a)  states that the rule applies to  proceedings under 18 VSA 206 ( which is the

Act 248 statute).

 In Mr. Bennett’s case, counsel, on Mr. Bennett’s behalf, essentially waived his

constitutional right to trial, and stipulated to the Act 248 commitment ( please see

Findings and Order); Mr.  Bennett did not sign the stipulation.

VRFP 6.1 (d) (2 )(D) : states “Waivers of Constitutional and Other Important

Rights” and specifically sets forth that the Court shall not accept the proposed

waiver or admission unless the court determines

 “that the waiver or admission is being entered into knowingly and voluntarily by

the respondent and also by the guardian ad litem, except as set forth in paragraph

( 3) of this subdivision.”

VRFP 6.1 (d) (2) (d) (3): “Approval without Respondent’s  Consent of

Constitutional or other important waivers” A waiver or admission listed in

paragraph (2) of this subdivision may be approved with the consent of the guardian

ad litem but without the consent of the respondent only if the respondent is unable

to communicate effectively with respect to the waiver or admission….”

In Mr. Bennett’s case, the Findings and Order do not contain a specific finding that

the waiver or admission was entered into knowingly and voluntarily by the

respondent. In addition, it cannot be inferred, as Mr. Bennett did not sign the

Stipulation. Thus, subsection VRFP 6.1 (d) (2) (3) applies, as it addresses waivers

without the respondent’s consent. VRFP 6.1 (d) (2) (3) specifically references a

GAL; in Mr. Bennett’s case, his mother, Tracy Gilman, was assigned to be his

Guardian ad Litem (please see Exhibit A, certified copy of Docket Sheet, and the

October 31, 2006 entry). In addition, at the time of the Findings and Order, Mr.

Bennett had a legal guardian: his mother, Tracy Gilman ( Please see attached,

Exhibit F). As such, Ms. Gilman, guardian,  had the “power to maintain and defend

actions or suits for the protection of the ward’s property or person…” see Order,

paragraph 6; and “the power to obtain legal advice and to commence or defend

against court actions in the name of the person under guardianship.(14 V.S.A. §

3069 (6) “Powers of a guardian”)

 The stipulation states that “the parties so stipulate by and through their respective legal counsel,” yet neither Mr. Bennett,

nor Tracy Gilman acting as Guardian Ad Litem or as legal guardian, appear to have joined in the stipulation.

To the best of your Petitioner's knowledge and belief, Mr. Bennett’s  continued

detention under Act 248 is illegal for each of the above reasons, both jointly and

severally, and his continued detention violates Mr. Bennett’s Federal and State

Constitutional rights to due process under the US and Vermont Constitutions, and

further, to the best of the knowledge and belief of your Petitioner, no previous

application has been made for this

 

Writ, or for the relief now sought, either by Mr. Bennett or anyone on his behalf.

WHEREFORE, your Petitioner respectfully prays that this Writ of Habeas Corpus issue, directed to the Commissioner of DAIL, who  has custody of  William Bennett,  commanding  the Commissioner to immediately produce the body of the said William  Bennett before this Honorable Court so that it may inquire into the legality of his detention; and that the Court finds that deficiencies render the November 17, 2006 Findings and Order, and all subsequent Orders that have emanated from it, invalid, and  that the Commissioner has no lawful authority to hold Mr. Bennett in custody; and that this Honorable Court release Mr. Bennett from the custody of the Commissioner, and vacate the Act 248 Proceedings in their entirety.

Respectfully submitted,

 

By:_______________________________________          Gertrude Miller, Attorney for William BennettVERIFICATION

NOW COMES Gertrude Miller as counsel for William Bennett in this action, and hereby verifies that the

allegations as set forth in the instant petition are true and accurate to the best of her knowledge, information,

and belief, and that she believes said information to be true.

Dated at Newport, Vermont, this 27th day of February, 2011.

 

___________________________

Gertrude Miller, Attorney

On this ______ day of ____________________, Gertrude Miller personally appeared and gave oath that the

foregoing affidavit by her is true and accurate to the best of her knowledge. Sworn to and subscribed to me

this ____ day of ___________2011.

 

                By:___________________________________

                Notary  Public                      My commission expires____________________