|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@akcourts.gov
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
R.A.,
Court of Appeals No. A-14264
Petitioner, Trial Court No. 3KN-22-01012 CR
v.
O P I N I O N
STATE OF ALASKA,
Respondent. No. 2776 - May 24, 2024
Petition for Review from the Superior Court, Third Judicial
District, Kenai, Lance Joanis, Judge.
Appearances: Lacey Jane Brewster (petition) and George W.P.
Madeira (briefing), Assistant Public Defenders, and Terrence
Haas, Public Defender, Anchorage, for the Petitioner. Nancy
R. Simel, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Respondent.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge ALLARD.
The United States Supreme Court has recognized a "significant
constitutionally protected liberty interest in avoiding the unwanted administration of
----------------------- Page 2-----------------------
1
antipsychotic drugs." The Alaska Supreme Court has gone further and has held that
given Alaska's more protective constitutional guarantees of liberty and privacy, the
2
right to refuse to take antipsychotic drugs is "fundamental."
In Sell v. United States, the United States Supreme Court articulated a
four-part test that must be met before a court can authorize the involuntary medication
of an incompetent criminal defendant for the sole purpose of rendering them competent
3
to stand trial. This test requires the State to prove by clear and convincing evidence
that: (1) there are "important governmental interests at stake"; (2) "involuntary
medication will significantly further those concomitant state interests" in that
"administration of the drugs is substantially likely to render the defendant competent to
stand trial" and "substantially unlikely to have side effects that will interfere
significantly with the defendant's ability to assist counsel in conducting a trial defense";
(3) "involuntary medication is necessary to further those interests," i.e., "any
alternative, less intrusive treatments are unlikely to achieve substantially the same
results"; and (4) "administration of the drugs is medically appropriate, i.e., in the
4
patient's best medical interest in light of [their] medical condition." The Sell Court
emphasized that, under this test, orders authorizing involuntary medication solely for
5
restoration of competency "may be rare."
1 Sell v. United States, 539 U.S. 166, 178 (2003) (cleaned up) (quoting Washington
v. Harper, 494 U.S. 210, 221 (1990)).
2 Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 248 (Alaska 2006).
3
Sell, 539 U.S. at 180-81.
4 Id.
5 Id. at 180.
- 2 - 2776
----------------------- Page 3-----------------------
The current case involves a defendant who is charged with murder and has
6
been found to be incompetent to stand trial. R.A. is charged with first-degree murder,
second-degree murder, manslaughter, and tampering with evidence for allegedly killing
7
his mother in September 2022. After finding R.A. incompetent to stand trial, the
superior court ordered him committed to the Alaska Psychiatric Institute (API) for
restoration. Antipsychotic medication was prescribed, but R.A. refused to take the
medication voluntarily. The State subsequently filed a motion seeking to involuntarily
medicate R.A. under Sell. The superior court held a four-day Sell hearing in which
R.A.'s treating psychiatrist and a forensic psychologist testified at length.
Following the hearing, the superior court issued an order authorizing API
to involuntarily medicate R.A. in an effort to restore him to competency. R.A. petitioned
for review of the Sell order. Because postponement of review could result in impairment
of R.A.'s fundamental right to refuse psychotropic medication, we granted the petition
8
and ordered briefing. For the reasons explained in this opinion, we now affirm the
superior court's Sell order.
6 Initials have been used to protect the privacy of the petitioner.
7 AS 11.41.100(a)(1)(A), AS 11.41.110(a)(2), AS 11.41.120(a)(1), and
AS 11.56.610(a)(1), respectively.
8 Alaska R. App. P. 402(b)(1); see also Myers v. Alaska Psychiatric Inst., 138 P.3d
238, 248 (Alaska 2006) (holding that the right to refuse to take psychotropic drugs is
"fundamental" under the Alaska Constitution).
- 3 - 2776
----------------------- Page 4-----------------------
Factual background and prior proceedings
On September 6, 2022, R.A.'s sister called the police and asked them to
perform a welfare check on their mother. When the police went to the home, they
discovered the mother's deceased body in the front entryway, covered with blankets.
The victim had suffered three gunshot wounds and multiple stab wounds, including
slicing wounds that severed her spine and nearly decapitated her.
R.A., who was twenty years old at the time, was discovered lying in a bed
under blankets at the rear of the house. While being detained, he spoke in nonsensical
statements. He was subsequently transported to a correctional facility. The Department
of Corrections records from the time indicate that R.A. was "guarded" and "hostile"
and behaving oddly. He was prescribed 10 milligrams of olanzapine (Zyprexa), an
antipsychotic medication, to be taken twice daily, but he refused to take the medication.
R.A.'s attorney requested a competency evaluation, which was unopposed
by the prosecutor. Dr. Lesley Kane, a forensic psychologist at API, subsequently issued
a competency report in which she diagnosed R.A. with schizophrenia and opined that
he was not competent to stand trial. The report noted that R.A. had been evaluated for
competency twice within the past thirteen months (for other alleged offenses) and that
each of the competency evaluations had concluded that he was not competent to
proceed. The report also noted that he had been previously admitted to API in
April 2020, September 2021, and June 2022. His medical records showed that he was
largely non-compliant with his prescribed medications but that he had been given a
crisis medication during his September 2021 stay and he had voluntarily taken two
medications - aripiprazole (Abilify), an antipsychotic medication, and hydroxyzine,
for anxiety - for a few days during his June 2022 stay. None of his previous stays at
API had lasted more than five days.
Dr. Kane noted in her report that R.A.'s verbalizations during the
competency interview were fragmented, disorganized, and nonsensical, and that he
expressed delusional beliefs. She indicated that he "did not demonstrate an adequate
- 4 - 2776
----------------------- Page 5-----------------------
understanding of the court process at the time of the interview" and that "his mental
illness impedes his capacity to engage in rational, meaningful conversation." Dr. Kane
concluded that R.A. was not competent to stand trial, but that there was "substantial
likelihood that [he] can be restored to competency within a reasonable period if he were
to receive inpatient competency restoration services, including psychotropic medication
and competency related education."
After finding R.A. incompetent, the superior court issued an order
committing him to API for a period of up to ninety days for further evaluation and
treatment. Because of a lack of bed space at API, the ninety-day commitment period
expired while R.A. was still on the waiting list. R.A.'s attorney moved to dismiss his
9
case under J.K. v. State because R.A. had not been transferred to API on a timely basis.
The superior court denied the motion to dismiss and ordered a second ninety-day
commitment period.
R.A. was transferred to API in June 2023. A month later, Dr. Kane issued
an updated competency report. Dr. Kane reported that R.A. refused to meet with her
and that he remained incompetent. Dr. Kane noted that R.A. was unable "to engage in
any meaningful conversation, as most of his responses and statements [were]
nonsensical and off topic." Dr. Kane further noted that R.A. was not participating in
restoration services and was refusing medication. She opined again that there was a
substantial likelihood that he could become competent if he agreed to take the
prescribed medication.
The court held a hearing shortly before the second period of restoration
commitment was to expire. The court acknowledged that it could only order a third
period of restoration under AS 12.47.110(b) if it found that (1) R.A. presented a
9 J.K. v. State , 469 P.3d 434, 444-45 (Alaska App. 2020) (holding that it was a
violation of the defendant's substantive due process rights when he was left to "languish
in jail" for 100 days while waiting for admission to API).
- 5 - 2776
----------------------- Page 6-----------------------
substantial danger of physical injury to others, and that (2) R.A. was substantially likely
to attain competency within a reasonable period of time.10 R.A.'s attorney argued that
these findings could not be made, and she asked the court to dismiss the case without
prejudice.
Dr. Kane testified at the evidentiary hearing to determine if a third period
of restoration was warranted. Consistent with her prior competency reports, she testified
that R.A. had psychosis and that he remained cognitively disorganized with fragmented
and nonsensical speech. She also testified that R.A. had not improved because "he has
been unwilling to take medication."11 She stated that medication was "the most
important aspect of treatment for him because he has a psychotic disorder and he's
going to continue to be disorganized [without medication]." Dr. Kane testified that API
was preparing a petition to involuntarily medicate R.A. under Sell v. United States, and
she opined that there was a substantial likelihood that he could be restored to
competency within a reasonable period of time if he were medicated.
One of the investigating police officers also testified at the evidentiary
hearing and the State submitted photographs of the crime scene that showed the victim's
multiple gunshot wounds and stab wounds.
The court subsequently found that R.A. remained incompetent and that he
presented a substantial threat of physical injury to others. The court noted that whether
10 AS 12.47.110(b) ("If, at the expiration of the second 90-day period, the court
determines that the defendant continues to be incompetent to stand trial, the charges against
the defendant shall be dismissed without prejudice, . . . unless the defendant is charged
with a crime involving force against a person and the court finds that the defendant presents
a substantial danger of physical injury to other persons and that there is a substantial
probability that the defendant will regain competency within a reasonable period of time,
in which case the court may extend the period of commitment for an additional six
months.").
11 Dr. Kane testified that R.A. took the first dose of medication he was prescribed but
then refused the medication after that.
- 6 - 2776
----------------------- Page 7-----------------------
there was a substantial likelihood that R.A. would regain competency depended on the
outcome of the Sell involuntary medication petition. The court therefore ordered the
third restoration period (180 days) contingent on a Sell hearing to determine if
involuntary medication would be ordered.
Prior to the Sell hearing, the State submitted a Sell petition from API. The
report was co-authored by Dr. Kane and Dr. Christine Sawyer, who was R.A.'s treating
psychiatrist at API. The report proposed involuntarily medicating R.A. with two
antipsychotic medications: olanzapine (Zyprexa) at a maximum dose of 30 milligrams
per day; and haloperidol (Haldol) at a maximum dose of 200 milligrams per day. The
report also proposed medicating R.A. with diphenhydramine (Benadryl) to prevent any
possible side effects and lorazepam (Ativan) for agitation, anxiety, and sleep.
The report went through the Sell factors that require medical expertise.
First, the report stated that the proposed course of treatment was "medically
appropriate" because R.A. displayed "symptoms of a psychotic disorder, including
delusional beliefs and ideas of reference, emotional lability and perceptual
disturbances." The "treatment of choice" for a psychotic disorder is antipsychotic
medication.
Second, the report stated that "alternative, less intrusive treatments" were
not available because antipsychotic medication is "essential to the effective treatment
of psychotic disorders" and other forms of treatment - including education,
psychotherapy, and behavioral interventions - "do not address the essence of the
disorder and are unlikely to be successful." The report noted that R.A.'s participation
in treatment programming was "very limited" because his psychotic symptoms prevent
him from "engag[ing] in treatment in a meaningful manner." The report opined that
"[a]ntipsychotic medications represent the best, if not the only, treatment likely to
stabilize his illness."
Third, the report stated that the prescribed course of medication was
"substantially likely" to restore R.A. to competency. The report acknowledged that it
- 7 - 2776
----------------------- Page 8-----------------------
was not possible to say with certainty how R.A. would respond because there were no
records of R.A. having previously experienced "long-term treatment with a robust dose
of an antipsychotic medication." But the report noted that "the majority of patients"
with R.A.'s diagnosis and symptoms experienced an improvement in their symptoms.
The report extrapolated that R.A.'s symptoms would similarly improve, thereby also
improving his competency-related abilities. (The report acknowledged, however, that
fixed delusions are more resistant to treatment.) The report concluded that " [t]here is a
reasonable expectation that [R.A.]'s symptoms will improve with medications and that
he could be restored to competency following a period of treatment that included a
regimen of psychiatric medications." The report reiterated that "this is the only
treatment that presents any significant likelihood of restoration."
Lastly, the report stated that any side effects will not "undermine the
fairness" of a trial. The report noted that the most common side effects of antipsychotic
medications typically did not entail a risk of serious harm. Instead, the most frequent
side effects are so-called "nuisance" side effects - e.g., stiffness, restlessness, dry
mouth, and blurry vision - most of which could be addressed through other
medication. The report acknowledged that there were more serious side effects - such
as tardive dyskinesia - that were very harmful, although very uncommon. The report
noted that the most serious side effects have become increasingly rare with the advent
of the newer generation of antipsychotic medication. The report also noted that the
therapeutic effect of antipsychotic medication is to improve thinking, and therefore that
antipsychotic medication is likely to enhance, rather than undermine, the fairness of any
trial. The report emphasized, however, the need to carefully monitor the situation so
that if concerns about side effects are raised, they can be addressed through the proper
intervention.
- 8 - 2776
----------------------- Page 9-----------------------
The Sell hearing
The Sell hearing took place over four days. The authors of the Sell report,
forensic psychologist Lesley Kane and treating psychiatrist Christine Sawyer, both
testified at the hearing. This was the first time Dr. Sawyer had testified at a Sell hearing.
Because she had no prior experience with competency restoration, the court qualified
her as an expert in psychiatry but did not qualify her as an expert in forensic psychiatry.
R.A.'s sister also testified.
Dr. Kane testified that for individuals like R.A. who suffer from
psychosis, antipsychotic medication is a "necessary component of their restoration
process." Dr. Kane testified that API experiences a "high" level of success in restoring
individuals with R.A.'s diagnosis, although she noted that some defendants had
delusions related to their cases and medication may not be helpful in those cases.
Dr. Kane testified that the primary impediment to restoration currently
was R.A.'s disorganized thinking. She indicated that it was difficult to tell how much
he understood about court processes because "he's too symptomatic or disorganized to
be able to talk about it." Dr. Kane testified that the medication would make R.A. feel
"more comfortable, less anxious, less paranoid" and would help him engage in
conversation so they could assess what he actually knew and help him fill in educational
gaps.
Dr. Kane testified that there was nothing in the record to suggest that R.A.
would have an adverse or negative reaction to the medication. She acknowledged,
however, that there was very little history to draw from as he had only been on
antipsychotic medication for a few days. Dr. Kane did not find it surprising that his
symptoms had remained when he had previously been on medication because a few
days was not enough time for a significant difference to occur; instead, it generally took
four to six weeks to see significant symptom improvement. Based on her experience
with individuals with similar diagnoses and symptoms, Dr. Kane affirmed that there
- 9 - 2776
----------------------- Page 10-----------------------
was a substantial likelihood R.A. would be restored to competency if medicated with
the prescribed course of treatment.
Dr. Sawyer testified similarly to Dr. Kane that antipsychotic medication
was the preferred treatment for individuals with schizophrenia. She testified that her
process of evaluating patients and recommending treatment did not vary from the civil
to criminal context and she was primarily interested in the "best interests or health
interest" of the patient. She noted that R.A.'s symptoms were affecting his ability to
engage and opined that the medications would give him some relief from "just
perseverating on one word" and would "help him with his thinking." She also asserted
that the medications would help calm him and give him relief from his paranoia. She
noted that R.A. had delusions that people were harming him and that medication "often"
lifts such delusions. She acknowledged that delusions were less likely to be affected by
medication if they had lasted for years, but she noted that R.A. (who was twenty-one
years old at the time) "hasn't had that."
Dr. Sawyer explained why she had chosen the course of medication
recommended in the Sell report. She noted the two antipsychotics, olanzapine (Zyprexa)
and haloperidol (Haldol), would help calm him, relieve paranoia, and aid in his ability
to communicate. She explained that she would not use the antipsychotics together but
would base what she used on his reactions and the specific needs at the time. Dr. Sawyer
said her recommendation was based, in small part, on her belief that R.A. had taken
olanzapine (Zyprexa) previously. (This was incorrect; R.A. had taken aripiprazole
(Abilify) during one of the API stays, which Dr. Sawyer also acknowledged.) She noted
that haloperidol (Haldol), a typical antipsychotic, had different side effects than
olanzapine (Zyprexa), an atypical antipsychotic, but that any side effects could get
addressed by the antihistamine, diphenhydramine (Benadryl), she was ordering.
Finally, she explained that she also was ordering a mood stabilizer, lorazepam (Ativan),
to help with R.A.'s agitation.
- 10 - 2776
----------------------- Page 11-----------------------
Because she had not been qualified as a forensic psychiatrist and was
unfamiliar with the competency procedures, Dr. Sawyer was not permitted to answer
the question of whether she believed that R.A. was substantially likely to be restored to
competency if involuntarily medicated. However, she was able to answer in the
affirmative that, if involuntarily medicated, R.A. would be substantially likely to be
able "to understand the proceedings against him" and able to "assist in his defense."
Dr. Sawyer also testified that she held a "reasonable expectation" that R.A.'s symptoms
would improve such that "he can understand the proceedings against him and assist in
his defense at trial."
Dr. Sawyer acknowledged that this was her first Sell hearing and that she
did not have much experience with forensic psychiatry - although she did have thirty
years' experience as a psychiatrist, the majority of which involved working with state
agencies and several years working in civil commitment. Dr. Sawyer also
acknowledged that it was impossible to predict a patient's reaction to medication with
certainty.
R.A.'s sister testified that she was concerned that forced medication would
make R.A.'s symptoms worse. She testified that she thought he had been on olanzapine
(Zyprexa) in the past and "he had lashed out even more" because he thought that he was
being poisoned. She also expressed that it was very difficult to get R.A. to take
medication because he thought she and their mother were imposters and he was
concerned that they were poisoning him. She acknowledged, however, that she was not
involved in his daily medication, and that "overall it was just up to him" to remain
medication compliant.
Dr. Sawyer was called in rebuttal. She testified that R.A.'s sister's
testimony confirmed that R.A. was taking medication only erratically and she opined
that the symptoms that the sister believed had worsened because of the medication were
instead symptoms of R.A.'s schizophrenia.
- 11 - 2776
----------------------- Page 12-----------------------
Following the hearing, the State and R.A.'s attorney submitted written
closing arguments based on the testimony at the Sell hearing and the Sell report that had
previously been submitted.
The State argued in its closing argument that all four Sell factors had been
met by clear and convincing evidence. As already explained, these factors require the
State to prove by clear and convincing evidence that (1) it has an "important" interest
at stake; (2) involuntary medication will "significantly further" that interest;
(3) involuntary medication is "necessary" to further the government's interest; and
(4) administration of psychotropic medication is "medically appropriate."12
The defense attorney argued that the second Sell factor - that involuntary
medication will "significantly further" the government's important interest 13 - had not
been met because the State had failed to show that R.A. was "substantially likely" to be
restored to competency if involuntarily medicated. The defense attorney criticized the
State for not having a forensic psychiatrist testify, and the attorney argued that
Dr. Sawyer's testimony should be discounted because she was not familiar with the test
for competency. The attorney also argued that Dr. Kane's testimony should be
discounted because she was a forensic psychologist, not a forensic psychiatrist. Lastly,
the attorney argued that the State had only shown what the "general" effects of
antipsychotic medication would be, and the State had failed to show how R.A. in
particular would respond. The attorney emphasized that R.A.'s sister testified that
medication had made him worse.
12 Sell v. United States, 539 U.S. 166, 180-81 (2003).
13 Id. at 181.
- 12 - 2776
----------------------- Page 13-----------------------
The superior court's oral ruling
The superior court issued its decision orally on the record outside the
presence of the parties. The court based its ruling on the testimony at the Sell hearing,
the Sell report co-authored by Dr. Kane and Dr. Sawyer, and the testimony and exhibits
from the prior competency evaluations and findings. In its ruling, the superior court
summarized the testimony and quoted at length from both the State's and the defense's
closing. The court specifically adopted the State's pleadings as its findings and also
adopted the prior Sell report "to the extent [it is] similar and add[s] some information."
The court made clear that its findings were by clear and convincing evidence .
The court found that Dr. Kane and Dr. Sawyer were credible witnesses.
The court noted that Dr. Sawyer was a psychiatrist who was qualified to testify about
which medications affect psychiatric symptoms and how those symptoms can be
ameliorated, while Dr. Kane was a forensic psychologist who was qualified to testify
about which psychiatric symptoms affect competency. The court noted that both experts
had, through their testimony and prior report, supported a finding that there was a
substantial likelihood that R.A. would be restored to competency if he were
involuntarily medicated. The court also agreed with the doctors that involuntary
medication appeared to be the only way that R.A. would be restored to competency.
The court discounted R.A.'s sister's testimony that medication had made
R.A. worse in the past, noting that the sister did not administer the drugs and therefore
did not know whether R.A. was taking them regularly - which it appeared he was not.
The court then suggested R.A. had previous positive experience with at least one of the
medications recommended in the Sell report. (The court appears to have conflated
Dr. Sawyer's inaccurate testimony that R.A. had previously been on olanzapine
(Zyprexa) with Dr. Kane's accurate testimony that R.A. had voluntarily taken
aripiprazole (Abilify), with no evident negative effects and potentially some positive
effects, during his June 2022 admission to API.)
- 13 - 2776
----------------------- Page 14-----------------------
Ultimately, the court went through each Sell factor and explained why it
was finding that each factor was met, and the court concluded that the State had met its
burden of proving by clear and convincing evidence that R.A. should be involuntarily
medicated under Sell.
This petition followed.
Why we granted this petition
In Myers v. Alaska Psychiatric Institute , a case involving involuntary
medication in the civil commitment context, the Alaska Supreme Court recognized that
psychotropic medication can have "profound and lasting negative effects on a patient's
mind and body."14 The supreme court then held that "[g]iven the nature and potentially
devastating impact of psychotropic medications" and "the broad scope of the Alaska
Constitution's liberty and privacy guarantees," a person's right to refuse to take
psychotropic drugs is "fundamental" under the Alaska Constitution. 15 The supreme
court further held that "[w]hen no emergency exists . . . the state may override a mental
patient's right to refuse psychotropic medication only when necessary to advance a
compelling state interest and only if no less intrusive alternative exists."16
The constitutionally protected nature of an individual's right to refuse
antipsychotic medication is also recognized in federal constitutional law. As the United
States Supreme Court emphasized in Washington v. Harper, "The forcible injection of
medication into a nonconsenting person's body represents a substantial interference
with that person's liberty."17 That interference is "particularly severe" in the case of
14 Myers v. Alaska Psychiatric Inst. , 138 P.3d 238, 246 (Alaska 2006).
15 Id. at 248.
16 Id.
17 Washington v. Harper, 494 U.S. 210, 229 (1990).
- 14 - 2776
----------------------- Page 15-----------------------
involuntary medication with antipsychotic drugs.18 Because an individual "possesses a
significant liberty interest in avoiding the unwanted administration of antipsychotic
drugs under the Due Process Clause of the Fourteenth Amendment," the United States
Supreme Court has required "a finding of overriding justification and a determination
of medical appropriateness" before an involuntary medication order may be issued.19
In Sell v. United States, the United States Supreme Court addressed the
question of whether, and under what circumstances, a court can order the involuntary
medication of an incompetent criminal defendant solely to restore the defendant to
competency.20 The Court noted that, before involuntary medication to restore
competency is considered, courts should ordinarily first determine whether the
government "seeks, or has first sought, permission for forced administration of drugs"
on other grounds - "such as the purposes set out in [ Washington v.] Harper related to
the individual's dangerousness, or purposes related to the individual 's own interests
where refusal to take drugs puts his health gravely at risk."21 According to the Court,
"If a court authorizes medication on these alternative grounds, the need to consider
authorization on trial competence grounds will likely disappear."22
As discussed previously, the Sell Court articulated a four-part test that
must be met before a court can order involuntary medication solely to restore an
incompetent criminal defendant to competency: (1) there must be an "important"
18 Riggins v. Nevada, 504 U.S. 127, 134 (1992).
19 Harper, 494 U.S. at 221-22; Riggins, 504 U.S. at 135.
20 Sell v. United States, 539 U.S. 166 (2003).
21 Id. at 182.
22 Id. at 183; see In re Linda M. , 440 P.3d 168, 173 (Alaska 2019) (holding that Sell
does not require "consolidation of criminal and civil mental health proceedings in a single
court," and, in fact, "strongly impl[ies] its approval of the 'separate, confidential civil
proceeding' that [the defendant] argue[d was] inconsistent with Sell").
- 15 - 2776
----------------------- Page 16-----------------------
government interest at stake; (2) involuntary medication must "significantly further"
that interest; (3) involuntary medication must be "necessary" to further that interest;
and (4) administration of involuntary medication must be "medically appropriate ."23
Under Alaska law, a Sell order is not a final order and there is therefore
no immediate right to appeal.24 But both parties have the right to petition for
interlocutory review of a Sell order. In the current case, R.A. has petitioned for review
under Alaska Appellate Rule 402(b)(1), which provides for interlocutory review when
"[p]ostponement of review until appeal may be taken from a final judgment will result
in injustice because of impairment of a legal right."25 R.A. argues that immediate review
of the Sell order is required because postponement of review will result in impairment
of R.A.'s fundamental constitutionally protected right to refuse psychotropic
medication. We agree that R.A. has fundamental constitutionally protected privacy and
liberty interests that justify immediate appellate review of the superior court's order .
We have therefore granted the petition in this case, and we now issue our decision in
this published opinion that resolves some of the legal issues that Sell left unanswered.
Our resolution of some of the legal issues that Sell left unanswered
The burden of proof
The United States Supreme Court did not directly prescribe the State's
burden of proof in Sell. But all of the federal and state courts that have addressed this
23 Sell, 539 U.S. at 180-81.
24 See Alaska R. App. P. 202(b) ("An appeal may be taken to the court of appeals from
a final judgment entered by the superior court or the district court, in the circumstances
specified in AS 22.07.020."); AS 22.07.020(e) (defining a "final decision" as "a decision
or order, other than a dismissal by consent of all parties, that closes a matter in the superior
court.").
25 Alaska R. App. P. 402(b)(1).
- 16 - 2776
----------------------- Page 17-----------------------
issue have held that the State must prove each Sell factor by clear and convincing
evidence.26
Clear and convincing evidence is "evidence that is greater than a
preponderance, but less than proof beyond a reasonable doubt."27 As the Alaska
Supreme Court has explained, "Clear and convincing evidence means and is that
amount of evidence which produces in the trier of fact a firm belief or conviction about
the existence of a fact to be proved."28 The Alaska Supreme Court has also defined clear
and convincing evidence as evidence establishing that something is "highly probable."29
We agree that a high standard of proof is needed in these cases given the
importance of the liberty and privacy interests at stake. We note that in Myers v. Alaska
Psychiatric Institute , the Alaska Supreme Court adopted the clear and convincing
burden of proof standard for involuntary medication petitions in civil commitment
cases.30 We believe that the same standard should apply under Sell. Accordingly, like
26 See, e.g., United States v. Diaz, 630 F.3d 1314, 1331-32 (11th Cir. 2011) (collecting
cases and concluding that "[o]ther circuit courts that have considered this issue uniformly
concluded that in Sell cases the government bears the burden of proof on factual questions
by clear and convincing evidence"); State v. Wang, 145 A.3d 906, 916 (Conn. 2016)
(adopting clear and convincing evidence standard of proof).
27 Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 187 (Alaska 2009) (quoting Buster
v. Gale, 866 P.2d 837, 844 (Alaska 1994)).
28 Id. (quoting Buster, 866 P.2d at 844).
29 Adkins v. Collens , 444 P.3d 187, 203 n.55 (Alaska 2019) (citing In re Reinstatement
of Wiederholt, 89 P.3d 771, 772 n.6 (Alaska 2004)); see also United States v. Valenzuela-
Puentes, 479 F.3d 1220, 1228 (10th Cir. 2007) ("[Under Sell] the government establishes
a fact by clear and convincing evidence only if the evidence 'place[s] in the ultimate [fact
finder] an abiding conviction that the truth of its factual contentions are 'highly probable. '
. . . This would be true, of course, only if the material it offered instantly tilted the
evidentiary scales in the affirmative when weighed against the evidence . . . offered in
opposition.'" (citations omitted)).
30 Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 254 (Alaska 2006).
- 17 - 2776
----------------------- Page 18-----------------------
the other jurisdictions to consider this issue, we now hold that the State must prove each
Sell factor by clear and convincing evidence.
The definition of "substantially likely"
To prove the second prong of the Sell test - that involuntary medication
will "significantly further" the government's interests - the State must prove, by clear
and convincing evidence, that administration of the proposed drugs is (1) "substantially
likely to render the defendant competent to stand trial," and (2) "substantially unlikely
to have side effects that will interfere significantly with the defendant's ability to assist
counsel in conducting a trial defense."31 (It is worth noting that the second prong only
involves side effects - such as slurred speech, tics, or sedation - that are likely to
interfere with the defendant's presentation to the jury or the defendant's ability to assist
counsel.32 Concerns about other types of side effects - such as weight gain - are
31 Sell v. United States, 539 U.S. 166, 180-81 (2003).
32 See Riggins v. Nevada, 504 U.S. 127, 142-43 (1992) (Kennedy, J., concurring).
The side effects of antipsychotic drugs may alter demeanor in a way
that will prejudice all facets of the defense. Serious due process concerns are
implicated when the State manipulates the evidence in this way. The
defendant may be restless and unable to sit still. The drugs can induce a
condition called Parkinsonism, which, like Parkinson's disease, is
characterized by tremor of the limbs, diminished range of facial expression,
or slowed movements and speech.
. . . .
These potential side effects would be disturbing for any patient; but
when the patient is a criminal defendant who is going to stand trial, the
documented probability of side effects seems to me to render involuntary
administration of the drugs by prosecuting officials unacceptable absent a
showing by the State that the side effects will not alter the defendant's
reactions or diminish his capacity to assist counsel.
Id. ; see also United States v. Moruzin, 583 F. Supp. 2d 535, 549 (D.N.J. 2008).
- 18 - 2776
----------------------- Page 19-----------------------
otherwise addressed through the fourth prong, which requires the administration of the
proposed drugs to be "medically appropriate."33)
The United States Supreme Court did not define "substantially likely" in
Sell. But many of the appellate courts that have affirmed Sell orders have done so based,
in part, on testimony that there was a seventy percent or higher likelihood that the
proposed medication would render the defendant competent to stand trial.34 This has
led at least one state supreme court to conclude that "substantially likely" requires a
33 Sell, 539 U.S. at 181; see also United States v. Ruiz-Gaxiola, 623 F.3d 684, 704 (9th
Cir. 2010) (explaining the difference between considering side effects under the second
and fourth Sell prongs).
34 See, e.g., United States v. Dillon, 738 F.3d 284, 297 (D.C. Cir. 2013) (affirming in
part because a study demonstrated that 73.3 percent of individuals with the same disorder
as the defendant were restored to competency following the proposed medication regimen);
United State v. Diaz, 630 F.3d 1314, 1332 (11th Cir. 2011) (affirming an order for
involuntary medication when expert testimony included statistical studies demonstrating
seventy-five to eighty-seven percent of patients with psychosis given antipsychotic
medication were restored to competency); United States v. Fazio, 599 F.3d 835, 840-41
(8th Cir. 2010) (affirming an order for involuntary medication when the State's expert
testified there was a "75 to 87 percent chance that the medications he recommended would
make [the defendant] competent to stand trial"); United States v. Green, 532 F.3d 538, 553
(6th Cir. 2008) (concluding that expert testimony that there was more than a ninety percent
likelihood the defendant would be restored to competency satisfied the "substantial
likelihood" standard); United States v. Bradley, 417 F.3d 1107, 1115 (10th Cir. 2005)
(affirming an order for involuntary medication when the expert witness testified that eighty
percent of defendants in his facility were restored to competency through administration of
psychotropic medication); United States v. Gomes, 387 F.3d 157, 161-62 (2d Cir. 2004)
(affirming an order for involuntary medication when experts noted a "substantial
probability" the defendant would be restored to competency, citing their facility's seventy
percent success rate); see also United States v. Rivera-Morales , 365 F. Supp. 2d 1139, 1141
(S.D. Cal. 2005) (finding that it could not order forcible medication of the defendant in part
because "a chance of success that is simply more than a 50% chance of success does not
suffice to meet [the 'substantially likely'] standard"); People v. McDuffie , 50 Cal. Rptr. 3d
794, 799 (Cal. App. 2006) (reversing a court's Sell order in part because fifty to sixty
percent likelihood of being restored to competency was determined insufficient under Sell).
- 19 - 2776
----------------------- Page 20-----------------------
likelihood of more than seventy percent.35 In State v. Barzee, the Utah Supreme Court
held that "the substantially likely standard requires that the chance for restoration to
competency be great," and the court concluded that "[t]o the extent that such a
likelihood can be quantified, it should reflect a probability of more than seventy
percent."36 The court likewise concluded that "in order for side effects to be considered
substantially unlikely to interfere with a defendant's right to a fair trial, any side effect
that would impede a defendant's ability to assist in her defense must have a very low
rate of occurrence."37
But there are also a minority of courts that have held that "substantially
likely" means only that the probability of restoration to competency is "more likely than
not." In State v. Wang, for example, the Connecticut Supreme Court noted that its state
statute permitted involuntary medication if the court found, by clear and convincing
evidence, that "to a reasonable degree of medical certainty," involuntary medication of
the defendant will render the defendant competent to stand trial.38 The Connecticut
court concluded that "a reasonable degree of medical certainty" meant that restoration
to competency is only "more likely than not," and the court therefore adopted that
standard for purposes of the second prong of the Sell test.39
We have previously rejected the Connecticut court's reasoning, but we
have only done so in an unpublished order.40 We now take the time to explain further
35 State v. Barzee, 177 P.3d 48, 61 (Utah 2007).
36 Id.
37 Id.
38 State v. Wang, 145 A.3d 906, 915 n.7, 917 (Conn. 2016).
39 Id. at 917.
40 See Jude A. v. State , Court of Appeals File No. A-14325 (Order dated Feb. 14,
2024).
- 20 - 2776
----------------------- Page 21-----------------------
why we reject this approach for purposes of Alaska law, and why we now hold that the
term "substantially likely" refers to a likelihood of significantly more than fifty percent .
In our view, the Utah Supreme Court is correct that the term "substantially
likely" must be interpreted "in the context of the greater question that it is designed to
address: whether the State's interest in a competent defendant will be significantly
furthered through involuntary medication."41 As the Utah court reasoned, viewing the
term in context "leads . . . to the conclusion that 'substantially likely' requires the
likelihood of restoration to be significant, rather than requiring merely 'some'
likelihood of restoration."42 Therefore, we agree that a finding that the likelihood of
restoration to competency is only fifty percent is insufficient to qualify as a substantial
likelihood of success.
We also agree that the two parts of the second prong of the Sell test -
whether involuntary medication is "substantially likely" to restore the defendant to
competency and whether the involuntary medication is "substantially unlikely" to cause
side effects that will impair the fairness of the trial - should be interpreted consistently,
and that they should mean significantly more than fifty percent and significantly less
than fifty percent. Otherwise, a court could authorize involuntary medication in cases
where there was almost a fifty percent chance of side effects that could render the trial
unfair. In our view, such an outcome would be inconsistent with the reasoning in Sell
and with Justice Kennedy's concurrence in Riggins v. Nevada , on which the Sell
reasoning is partially based.
In his concurrence in Riggins, Justice Kennedy warned that side effects
from the involuntary medication could impact the fairness of the trial, and the justice
concluded that "elementary protections" required the State "in every case" to make a
41 Barzee, 177 P.3d at 60.
42 Id.
- 21 - 2776
----------------------- Page 22-----------------------
showing "that there is no significant risk that the medication will impair or alter in any
material way the defendant's capacity or willingness to react to the testimony at trial or
to assist his counsel."43 This reasoning was cited approvingly by the Sell court,44 and is
consistent with our view that "substantially unlikely" means that the risk of such side
effects must be significantly lower than fifty percent.
Lastly, we note that interpreting "substantially likely" to mean
significantly more than a fifty percent chance of restoration to competency is in keeping
with Alaska's more protective privacy and liberty rights, which have led the Alaska
Supreme Court to conclude that the right to refuse unwanted antipsychotic medication
is "fundamental" under the Alaska Constitution.45
In his briefing on petition, R.A. requests that we explicitly adopt the Utah
Supreme Court's holding that "substantially likely" requires a probability of more than
seventy percent. However, we are reluctant to do so for a number of reasons. First, as
the Utah Supreme Court itself recognized, it is not clear that the likelihood of restoration
to competency can always be quantified in terms of a particular percentage.46 Nor is it
clear that having such a requirement is necessarily advisable, given the danger that
requiring a certain percentage may just lead to "tailoring" of the medical expert
testimony.47 While it is useful for medical experts in a Sell hearing to quantify, to the
43 Riggins v. Nevada, 504 U.S. 127, 141-43 (1992) (Kennedy, J., concurring).
44 Sell v. United States, 539 U.S. 166, 181 (2003).
45 Myers v. Alaska Psychiatric Inst. , 138 P.3d 238, 248 (Alaska 2006).
46 See Barzee, 177 P.3d at 61.
47 See State v. Cantrell, 179 P.3d 1214, 1221-22 (N.M. 2008) ("[W]e decline to assign
a number or percentage to the level of certainty by which a judge must find these two
elements because we wish to avoid, to the extent possible, tailored expert testimonies. . . .
If we were to place that responsibility on experts, the result would likely be testimony
contoured to our formal requirements but lacking in substance. We prefer that judges
interpret meaningful medical testimony in the context of the applicable legal standards.").
- 22 - 2776
----------------------- Page 23-----------------------
extent they can, a probabilistic likelihood that the proposed course of involuntary
medication will render a particular defendant competent, it does not necessarily follow
that the decision of whether to order involuntary medication should turn on the
difference between certain percentage points.
Thus, although we reject the Connecticut court's assumption that
"substantially likely" means only "more likely than not,"48 we decline R.A.'s request to
adopt seventy percent as the specific threshold that must be met before involuntary
medication may be ordered under Sell. Instead, we hold that the likelihood of restoration
to competency must be significantly more than fifty percent in order to qualify as
substantial for purposes of the second prong of the Sell test.49
The standard of review
In the civil commitment context, a trial court's order authorizing
involuntary medication is treated as a mixed question of fact and law.50 The appellate
court reviews the trial court's factual findings for clear error and reverses those findings
only if the appellate court has a "definite and firm conviction that a mistake has been
made."51 However, whether those findings meet the statutory requirements for
involuntary medication is a question of law to which the appellate court applies its
48 State v. Wang, 145 A.3d 906, 917 (Conn. 2016).
49 See, e.g., People v. McDuffie , 50 Cal. Rptr. 3d 794, 799 (Cal. App. 2006)
(concluding that a fifty to sixty percent likelihood was insufficient under Sell); see also
supra note 34 (collecting cases addressing whether the "substantially likely" requirement
was satisfied).
50 In re Naomi B., 435 P.3d 918, 923-24 (Alaska 2019).
51 Id. at 924 (quoting In re Jacob S. , 384 P.3d 758, 764 (Alaska 2016)).
- 23 - 2776
----------------------- Page 24-----------------------
independent judgment.52 This standard of review is well-established in the relevant
Alaska Supreme Court case law.53
That case law strongly suggests that the same standard of review should
apply to Sell orders - that is, to the trial court's ultimate decision whether to order
involuntary medication in the competency context. But that case law does not
necessarily answer the question of what standard of review should apply to each of the
Sell factors.
Courts in other jurisdictions have uniformly treated the first Sell factor -
whether there is an important governmental interest at stake - as a question of law.54
52 Id. at 923-24.
In order to administer psychotropic medication without a patient's consent,
the State must also show by clear and convincing evidence "that no less
intrusive alternative treatment is available." Determining whether a less
intrusive alternative exists involves both "a balancing of legal rights and
interests" and a factual inquiry into alternative treatments. The legal
balancing weighs "the fundamental liberty and privacy interests of the patient
against the compelling state interest under its parens patriae authority to
'protect "the person and property" of an individual who lack[s] legal age or
capacity.'" This is intertwined with the factual assessment of "the feasibility
and likely effectiveness of a proposed alternative." A proposed alternative
"must actually be available, meaning that it is feasible and would actually
satisfy the compelling state interests that justify the proposed state action."
Id. at 935-36 (citations omitted).
53 See, e.g., id.; In re Dominic N. , __ P.3d __, 2024 WL 1819588, at *3 (Alaska
Apr. 26, 2024); In re Tonja P., 524 P.3d 795, 800 (Alaska 2023); In re Mark V. , 501 P.3d
228, 234 (Alaska 2021); In re Rabi R., 468 P.3d 721, 730 (Alaska 2020); In re Linda M. ,
440 P.3d 168, 171 (Alaska 2019); Jacob S. , 384 P.3d at 763-64; In re Tracy C. , 249 P.3d
1085, 1089 (Alaska 2011).
54 United States v. Green, 532 F.3d 538, 546 (6th Cir. 2008) (collecting cases and
agreeing that the first Sell factor is a legal conclusion that is reviewed de novo); see also
United States v. Evans, 404 F.3d 227, 236 (4th Cir. 2005) (observing that whether the
government's interest is "important" is a legal question it reviews de novo, although it
reviews for clear error any factual findings relevant to that determination).
- 24 - 2776
----------------------- Page 25-----------------------
But courts are not uniform as to whether the remaining Sell factors are predominantly
questions of fact or of law.55
We conclude that we need not resolve this question in this case because
we conclude that the State met its burden of proving the second Sell factor under either
a clearly erroneous or a de novo review.
Why we affirm the superior court's Sell order
As already explained, before a trial court may issue an order involuntarily
medicating a criminal defendant in an effort to restore them to competency, the State
must prove (and the court must find) by clear and convincing evidence the following
four-part test: (1) there are "important governmental interests at stake"; (2) "involuntary
medication will significantly further those concomitant state interests" in that
"administration of the drugs is substantially likely to render the defendant competent to
stand trial" and "substantially unlikely to have side effects that will interfere
significantly with the defendant's ability to assist counsel in conducting a trial defense";
(3) "involuntary medication is necessary to further those interests," i.e., "any
alternative, less intrusive treatments are unlikely to achieve substantially the same
results"; and (4) "administration of the drugs is medically appropriate, i.e., in the
patient's best medical interest in light of [their] medical condition."56
55 Compare United States v. Dillon , 738 F.3d 284, 291 (D.C. Cir. 2013) (citing cases
and agreeing with the majority of courts that the second, third, and fourth Sell factors are
questions of fact), and State v. Wang, 145 A.3d 906, 915-916 (Conn. 2016) (noting that
although the meaning of "substantially likely" is a legal question, whether the government
has satisfied that legal standard is a question of fact reviewed for clear error), with United
States v. Valenzuela-Puentes, 479 F.3d 1220, 1224 (10th Cir. 2007) (reviewing the second
Sell factor de novo), and State v. Cantrell, 179 P.3d 1214, 1221 (N.M. 2008) (reviewing
the second Sell factor as a mixed question of law and fact).
56 Sell v. United States, 539 U.S. 166, 180-81 (2003).
- 25 - 2776
----------------------- Page 26-----------------------
In the current case, R.A. does not dispute that the first, third, and fourth
factors have been met. That is, R.A. acknowledges that the State has an "important
governmental interest" in prosecuting him for the alleged murder of his mother, and he
does not argue that there are any "special circumstances" that would undermine that
interest. R.A. also acknowledges that there are no less intrusive treatments that would
be likely to restore him to competency. And R.A. does not directly dispute that
administration of the prescribed course of antipsychotic medication is in his best
medical interest.
R.A. challenges, however, the superior court's findings under the second
Sell factor. R.A. attacks the superior court's findings on the second Sell factor on three
different grounds.
First, R.A. argues that the superior court failed to make "the necessary
findings" to support the second Sell factor. R.A. criticizes the superior court for
adopting the State's proposed findings wholesale and he argues that the court failed to
conduct its own independent analysis. But as the State points out, there is nothing
improper about what the superior court did here - creating an oral record of the
relevant testimony and the parties ' arguments and then directly adopting the State's
proposed findings. The court's recounting of the facts was extensive and its analysis
demonstrated a proper understanding of the legal standards that the State was required
to meet. Although the court ultimately adopted the State's proposed findings from its
written closing argument, the record is clear that the court did not simply defer to the
State's arguments or otherwise abdicate its responsibility to make an independent
assessment of the facts. Accordingly, we reject this first claim of error.
Second, R.A. argues that the superior court erred in failing to reconcile the
differences between the State's arguments and the conclusions of the Sell report jointly
authored by Dr. Kane and Dr. Sawyer. R.A. points out that the legal standard requires
the State to prove that involuntary medication is "substantially likely" to restore the
defendant to competency, but the report stated only that it was the doctors' "reasonable
- 26 - 2776
----------------------- Page 27-----------------------
expectation" that involuntary medication would restore R.A. to competency. R.A.
argues that there is a difference between "reasonable expectation" and "substantially
likely," and he asserts that the superior court erred because it did not acknowledge, or
reconcile, that difference.
But the problem with this argument is that it was never raised or argued
in the proceedings below. That is, neither Dr. Kane nor Dr. Sawyer were questioned
about their use of "reasonable expectation" in their report, and they were not asked to
explain whether there was any difference between that standard and the "substantially
likely" standard that they both later testified to. On appeal, the State argues that "a
reasonable expectation" is synonymous with a "substantial likelihood" and that both
terms mean something "significantly more" than a fifty percent probability. We are not
necessarily convinced that the two standards are identical, but we conclude that any
erroneous use of "reasonable expectation" as the standard in the report was rendered
harmless by virtue of both Dr. Kane and Dr. Sawyer later testifying at the evidentiary
hearing that there was a substantial likelihood that R.A. would be rendered competent
by the prescribed course of treatment. Accordingly, we find no error.
Lastly, R.A. argues that the superior court made a factual error that he
claims directly affected the reliability of the court's findings on the second and fourth
Sell factors. At the evidentiary hearing, Dr. Sawyer testified (incorrectly) that she
believed that R.A. had taken olanzapine (Zyprexa) during one of his API visits.
Dr. Sawyer further testified that R.A. did not appear to have any negative side effects
from that experience. In its oral ruling, the superior court implied R.A. had taken at
least one of the medications Dr. Sawyer was recommending without negative effect and
potentially with some positive reaction. In so stating, the court appears to have conflated
Dr. Sawyer's incorrect testimony with Dr. Kane's correct testimony that R.A. had
previously taken a medication without noted negative effects and some positive impact.
In reality, as Dr. Kane testified, the drug that R.A. took with no recorded negative
- 27 - 2776
----------------------- Page 28-----------------------
effects and some potentially positive effect was aripiprazole (Abilify), not olanzapine
(Zyprexa), as Dr. Sawyer erroneously claimed.
On appeal, R.A. argues that this Court should vacate the superior court's
Sell order based on this factual error. But we agree with the State that the error was of
limited significance given the larger context of the doctors' testimony. Both doctors
were clear that the most salient fact about R.A.'s past treatment with antipsychotic
medication was that he had never been on medication for any lengthy period of time.
The doctors' predictions as to how he would tolerate the proposed medication was
instead based primarily on the doctors' experiences with other patients who were
similarly situated to R.A. in terms of age, symptoms, and diagnosis.
Thus, contrary to R.A.'s arguments on appeal, the superior court did not
order involuntary medication because it erroneously believed that R.A. had a positive
response to one of the prescribed medications. Instead, the court ordered involuntary
medication under Sell, knowing that R.A. did not have much of a track record with any
of the proposed medications. We therefore conclude that the superior court's factual
error regarding R.A.'s past use of olanzapine (Zyprexa) does not undermine the court's
ultimate conclusion, based on all of the testimony it heard and evidence it received, that
the State had met its burden of proving all four factors of the Sell test.
Conclusion
The Sell order of the superior court is AFFIRMED.
- 28 - 2776
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
