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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Necessity for the Hospitalization of Mark V. (5/16/2014) sp-6911

In Re Necessity for the Hospitalization of Mark V. (5/16/2014) sp-6911

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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In the Matter of the Necessity                       )  

for the Hospitalization of                           )        Supreme Court No. S-14534  


MARK V.                                              )        Superior Court No. 4FA-11-00612 PR  


                                                     )       O P I N I O N  


                                                     )       No. 6911 - May 16, 2014  


                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.  

                  Appearances:  Marjorie  K.  Allard  and  Michael  Schwaiger,  

                  Assistant  Public  Defenders,  and  Quinlan  Steiner,  Public  

                  Defender,      Anchorage,        for   Appellant.         Ruth     Botstein,  

                  Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                  Geraghty, Attorney General, Juneau, for Appellee.  

                  Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,  


                  Justices, and Eastaugh, Senior Justice.*  

                                                                       [Carpeneti, Justice,  

                  not participating.]  

                  EASTAUGH, Senior Justice.

                  STOWERS, Justice, with whom MAASSEN, Justice, joins, dissenting.


                  In November 2011 the superior court entered a 30-day involuntary civil  

         *        Sitting  by  assignment  made  under  article  IV,  section  11  of  the  Alaska  

Constitution and Alaska Administrative Rule 23(a).  

----------------------- Page 2-----------------------

commitment order for Mark V. after the court conducted an evidentiary hearing and  


                                                                                                   1  Mark argues on  

found that Mark posed a "substantial risk . . . of harming others."    

appeal that the court clearly erred in so finding.  Because his period of commitment  


under that order has expired and Mark was soon released from custody, his "weight of  


the evidence" appeal is technically moot.  But he argues that the collateral consequences  

exception  to  the  mootness  doctrine  nonetheless  justifies  appellate  review  of  the  

November  2011  commitment  order.    The  circumstances  -  including  four  civil  


commitment  orders  entered  against  Mark  earlier  in  2011  and  the  absence  of  any  


indication that the November 2011 commitment will result in any additional adverse  

collateral consequences - convince us that the exception is not satisfied.  We therefore  

do not reach the merits of Mark's appeal and dismiss it as moot.  



                   Mark V. had a history of mental illness that led to entry of five earlier  


involuntary civil commitment orders - one in 2002 and four in 2011 - before entry of  

                                                                           2  The events leading to the disputed  


the November 2011 order that Mark challenges here. 

commitment  began  on  November  7,  2011,  when  Mark  arrived  in  Fairbanks  after  


traveling  from  Anchorage  by  taxicab  at  an  approximate  cost  of  $900.                                 Soon  after  


arriving, Mark visited a bank, where his reportedly bizarre and loud behavior prompted  


a bank teller to trigger the alarm.  Mark then went to a Fairbanks residence and had a  

verbal  altercation  with  an  occupant.    The  home  was  a  rental  property  belonging  to  


Mark's  family,  but  the  tenants  were  not  relatives  of  Mark.    Although  the  details  


surrounding the altercation are murky, Mark reportedly exhibited threatening behavior  

          1        We use a pseudonym to protect Mark's privacy.  

          2         The parties dispute the number of Mark's prior involuntary commitments.  

The  record  reflects  five  prior  commitment  orders,  including  four  orders  entered  in  


March, May, June, and September 2011.  

                                                             -2-                                                          6911  

----------------------- Page 3-----------------------

toward a tenant, who then called the police.  The police took Mark to the Fairbanks  

Memorial Hospital mental health unit, where he was admitted.  

                   On November 8 two mental health professionals applied for an ex parte                 

order  authorizing  Mark's  hospitalization  for  an  evaluation.    Superior  Court  Judge  


Michael A. MacDonald granted the application the next day, ordered Mark's prompt  

evaluation, scheduled a hearing on the anticipated 30-day commitment petition, and  

appointed the Public Defender Agency to represent him.  


                   On November  10  a  psychiatrist and a psychologist filed a 30-day civil  

commitment petition alleging that Mark was mentally ill; they described facts supporting  


their allegations that he was gravely disabled and that he was likely to cause harm to  


others.  Superior Court Judge Randy M. Olsen conducted the commitment hearing the  


same  day.    The  court  heard  testimony  from  the  same  psychologist  and  a  different  

psychiatrist;  they  both  diagnosed  Mark  as  having  some  form  of  schizophrenia  and  

bipolar disorder and testified that Mark posed a threat of harm to others if released.  

                   At the conclusion of the hearing, the superior court applied the clear and  


convincing evidence standard and found that Mark was mentally ill and that as a result  


of his mental illness Mark was likely to cause serious harm to others.  The court relied  

on  the  evidence  of  Mark's  recent  behavior,  including  evidence  that  he  threatened  a  


physician, punched a staff member, and engaged in conduct that "rais[ed] such a conflict  

that people call[ed] 911."  The court ordered Mark committed to Alaska Psychiatric  

Institute (API) for a period not to exceed 30 days.  

                   Mark appeals.  


                   We resolve issues of mootness using our independent judgment because,  

                                                          -3-                                                    6911

----------------------- Page 4-----------------------



as a matter of judicial policy, applying the mootness doctrine presents a question of law. 

IV.         DISCUSSION  


            A.          The Mootness Doctrine And Its Exceptions  

                        "A claim is moot if it is no longer a present, live controversy, and the party  



bringing           the     action         would         not       be     entitled         to     relief,       even        if    it    prevails." 


Commitment-order appeals based on assertions of insufficient evidence are moot if the  



commitment period has passed, subject to two exceptions: the public interest exception 


and the collateral consequences exception.    


                        Mark's appeal from the November 2011 order is technically moot because  

his period of commitment under that order has expired; the parties agree that he was  

released from custody.  But Mark contends that the collateral consequences exception  

applies to his appeal.  He also suggests that AS 47.30.765 guarantees, as a matter of  

right, an appeal from any commitment order.  


                        In its Brief of Appellee, the State initially argued that Mark's appeal is moot  

and  does  not  fall  within  a  recognized  exception  to  the  mootness  doctrine;  the  State  

            3           Ulmer v. Alaska Rest. & Beverage Ass'n                                 , 33 P.3d 773, 776 (Alaska 2001)   

(citing Kleven v. Yukon-Koyukuk Sch. Dist.                                  , 853 P.2d 518, 525 n.13 (Alaska 1993)); see  

also  In re Joan K. , 273 P.3d 594, 595-96 (Alaska 2012) (citing                                               In re Tracy C. , 249 P.3d  

 1085, 1089 (Alaska 2011)) (explaining that we use our independent judgment and "adopt   

the rule of law most persuasive in light of precedent, reason, and policy").  



                        Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 380 (Alaska 2007)  


(quoting Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 1165,  

1167 (Alaska 2002)).  

            5           Id .  



                        In  re  Joan  K. ,  273  P.3d  at  597-98  (adopting  collateral  consequences  


exception  to  mootness);  see  also  In  re  Jeffrey  E. ,  281  P.3d  84,  86  (Alaska  2012)  

(applying collateral consequences exception to mootness).  

                                                                          -4-                                                                    6911

----------------------- Page 5-----------------------

therefore urged us to dismiss Mark's appeal as moot.                                             But at oral argument the State  

instead asked us to review the merits of some otherwise-moot commitment orders to  

provide more guidance to trial courts.  

            B.         The Collateral Consequences Exception Does Not Apply To This Case.  

                       1.          Framing the issue: In re Joan K.  

                       The collateral consequences exception permits courts to decide otherwise-    

moot cases "when a judgment may carry indirect consequences in addition to its direct   

                                                                                                                           7   In re Joan K.  

force, either as a matter of legal rules or as a matter of practical effect."                                                   


was an appeal from the appellant's first involuntary civil commitment order.   Because  


her  commitment  period  had  ended,  Joan  K.'s  appeal  was  technically  moot.9                                                              We  


nonetheless  held  that  the  general  collateral  consequences  of  her  first  involuntary  


commitment order were sufficient to satisfy the collateral consequences exception to  

mootness, and that no particularized showing of specific collateral consequences was  


needed to satisfy the exception.                           Joan K. argued that the consequences included social  

stigma, adverse employment restrictions, application in future legal proceedings, and  


restrictions on the right to possess firearms.                                   We did not specify when an individual  


would be required to make a particularized showing of collateral consequences, but we  


noted that "some number of prior involuntary commitment orders would likely eliminate  

the  possibility  of  additional  collateral  consequences,  precluding  the  [exception's]  

            7          In  re  Joan  K. ,  273  P.3d  at  597-98  (quoting Peter  A.  v.  State,  Dep't  of  

Health & Soc. Servs., Office of Children's Servs. , 146 P.3d 991, 994-95 (Alaska 2006)).  

            8          Id. at 598.  

            9          Id. at 597.  

            10         Id. at 598.  

            11         Id. at 597.  

                                                                         -5-                                                                 6911

----------------------- Page 6-----------------------



                   More recently, in In re Jeffrey E. , we applied our holding in Joan K. to a  


sufficiency-of-the-evidence challenge to a commitment order.                                 We noted in Jeffrey E.  

that evidence-based challenges to expired commitment orders are generally moot and  


                                                                                                    But we held that  

will not be reviewed absent an exception to the mootness doctrine. 

the collateral consequences exception applied to Jeffrey's appeal because it was Jeffrey's  


first involuntary commitment:  

                   Jeffrey  appeals  the  superior  court's  finding  that  he  was  

                   gravely  disabled.  He  does  not  appeal  the  mental  illness  

                   finding  or  the  finding  that  API  was  the  least  restrictive  

                   alternative.  Although Jeffrey was released from API shortly  


                   after being committed and the issue he raises is moot under  

                   the standard established in Wetherhorn v. Alaska Psychiatric  



                   Institute ,       because  this  was  Jeffrey's  first  involuntary  

                   commitment  we  consider  his  appeal  under  the  collateral  

                   consequences exception to mootness recently adopted in In  



                   re Hospitalization of Joan K.  

                   Several  circumstances  persuade  us  that  the  collateral  consequences  


exception does not apply to Mark's appeal. These circumstances include (1) the fact that  


Mark's  challenge  is  exclusively  to  the  sufficiency  of  the  evidence  relied  on  by  the  

          12       Id. at 598.  

          13       281 P.3d 84, 86 (Alaska 2012) (considering merits of technically moot  

appeal of first involuntary commitment order).  

          14       Id. at 86 & n.5.  

          15       156 P.3d 371, 380 (Alaska 2007) (holding that an evidence-based challenge  

to an expired 30-day commitment order was moot and would not be reviewed absent an  

exception to the mootness doctrine).  

          16       In re Jeffrey E. , 281 P.3d at 86 (internal citations and footnotes omitted).  

                                                            -6-                                                      6911

----------------------- Page 7-----------------------

superior court; (2) the complete absence of any indication of a procedural or fundamental  

flaw in the superior court proceedings; (3) the entry of four involuntary civil commitment  


orders in the eight months preceding entry of the order challenged here; and (4) the  

absence  of  any  indication  the  present  order  might  plausibly  cause  Mark  to  suffer  

incrementally significant collateral consequences.  

                   2.       Absence of specific collateral consequences  

                   Mark  asserts  that  the  adverse  collateral  consequences   resulting  from  

involuntary civil commitment orders do not end with entry of the first such order; he   

implies that adverse consequences should be presumed from the curtailment of liberty  


resulting from involuntary commitments.  Although he conceded at oral argument on  


appeal that there had been  no  particularized showing of collateral consequences, his  

reply  brief  asserts  that  social  stigma  and  the  likelihood  of  future  commitments  are  


collateral consequences that grow with each additional commitment.  He also contends  

that commitment orders can affect future legal proceedings; he cites as an example the  

use  of  a  commitment  order  to  impeach  credibility.    Mark  also  argues  that  appellate  


review of involuntary commitment orders should occur whenever there is a possibility  

of collateral consequences.  

                   The State's appellate brief argues that the collateral consequences exception  

does  not  apply  to  Mark's  appeal  because,  given  his  recent  prior  commitments,  the  

November 2011 order brought no "easily cognizable additional collateral harms."  As  


we  explain,  we  agree  with  that  contention.    Our  agreement  does  not  mean  that  the  


collateral consequences exception can never apply when a new commitment order is  

entered.    But  we  are  unpersuaded  here  that  there  is  any  plausible  likelihood  that  


additional collateral consequences could attach to Mark's November 2011 commitment  


order.  At least five prior commitment orders had been entered against Mark; four were  

very  recent,  having  been  entered  in  the  eight  months  preceding  entry  of  the  order  

                                                           -7-                                                     6911

----------------------- Page 8-----------------------

challenged here.  Mark gives us no reason to think that any collateral consequences  


potentially attributable to the November 2011 order were not equally attributable to the  


four most-recent prior orders.                     And he gives us no reason to think that the collateral  

consequences arising from the earlier 2011 orders had become inconsequential and that  

the November order therefore inflicted incrementally significant collateral consequences  


on Mark.  He has not convinced us that the disputed order could have resulted in any  


additional collateral consequences.  We are also unconvinced that the mere possibility  

of  additional  but  unparticularized  collateral  consequences  automatically  justifies  


substantive review of every subsequent involuntary commitment order entered against  

a respondent.  


                     Importantly, there has been no intimation that the commitment hearing was  



procedurally or fundamentally flawed in any way.                                 Instead, Mark argues only that the  


evidence  did  not  support  the  finding  the  superior  court  relied  on  in  entering  the  

commitment  order.    His  argument  really  seeks  a  reweighing  of  the  evidence.  His  


substantive arguments therefore raise no issue that might justify departing from our usual  


approach to reviewing moot issues and our application of the collateral consequences  

           17        See  In re Joan K. , 273 P.3d at 598 ("[S]ome number of prior involuntary       

commitment  orders  would  likely  eliminate  the  possibility  of  additional  collateral  

consequences . . . ."); see also In re Jeffrey E., 281 P.3d at 86 (holding that collateral  

consequences exception applied because respondent had no prior commitment orders);  


In re Alfred H.H. , 910 N.E.2d 74, 84 (Ill. 2009) (holding that collateral consequences  

exception did not apply because "[e]very collateral consequence that can be identified  


already existed as a result of respondent's [multiple] previous adjudications and felony  


conviction [for murder]").  



                     Cf. Wetherhorn, 156 P.3d at 375-76, 379-80 (internal quotation marks and  

citations omitted) (recognizing that involuntary commitment is a "massive curtailment  

of  liberty  that  cannot  be  accomplished  without  due  process  of  law"  and  addressing  

procedural due process challenges to 30-day commitment petition).  

                                                                 -8-                                                          6911

----------------------- Page 9-----------------------




                   We conclude that the collateral consequences exception does not apply to  

this case.  

                   3.	       The  availability  of  an  alternative  statutory  remedy  under  

                             AS 47.30.850  


                   At oral argument the State asserted that AS 47.30.850 provides a form of  


alternative relief to respondents, such as Mark, who seek vacatur of commitment orders.  

Neither party cited this statute before oral argument.  

                   Because        the    potential      availability       of    alternative       relief    from      civil  

commitment orders could be pertinent to Mark's arguments that we should review the  

November  2011  order  despite  its  mootness,  we  have  reviewed  the  statute  to  decide  

whether it might be relevant to our mootness analysis.20  


                   Alaska Statute 47.30.850 grants courts the authority to expunge or seal the  

          19       See In re Joan K., 273 P.3d at 597 ("We . . . do not consider overturning  

Wetherhorn's  holding  that  an  evidentiary-based  challenge  to  a  completed  30-day  

commitment generally is moot."); see also In re Jeffrey E. , 281 P.3d at 86 (recognizing  


evidence-based  challenge  to  completed  commitment  to  be  moot,  but  nonetheless  


reviewing under collateral consequences exception because it was respondent's first  


involuntary commitment).  

          20       The  availability  of  alternative  relief  ameliorating  an  order's  collateral  

consequences is potentially relevant to whether the collateral consequences exception  

applies in a particular case.  Peter A. v. State, Dep't of Health & Soc. Servs., Office of  


Children's Servs., 146 P.3d 991 (Alaska 2006), is illustrative. We there assumed that the  


collateral consequences flowing from an adverse adjudication order would have justified  


Peter A.'s otherwise-moot appeal, had the State not successfully moved to dismiss the  

case  at  the  disposition  stage.    Id .  at  995-96.    Because  the  resulting  vacatur  of  the  


adjudication order avoided any collateral consequences to Peter, the exception did not  

prevent dismissal of his appeal as moot.  Id . at 996.  

                                                             -9-	                                                     6911

----------------------- Page 10-----------------------



records  of  persons  who  have  been  subject  to  civil  commitment  proceedings.                                       We  


conclude  that  the  remedies  provided  by  AS  47.30.850  may  avert  many  of  the  most  

onerous   collateral   consequences   that   potentially   attach   to   an   involuntary   civil  

commitment order.  

                    Alaska Statute 47.30.850 was originally enacted in 1981 as part of a major  


                                                                                          As originally enacted, the  

revision of Alaska's involuntary commitment legal regime. 


statute provided only the remedy of expungement, but in 1992 the statute was amended  


                                                                                     The legislative history shows  

to allow court records to be sealed as well as expunged. 


that the alternative remedy of sealing records was added to allay concerns regarding the  

unavailability of civil commitment records in subsequent, related criminal proceedings.24  

          21        AS 47.30.850 provides:  


                    Following  the discharge of a respondent from a treatment  


                    facility or the issuance of a court order denying a petition for  

                    commitment, the respondent may at any time move to have  

                    all court records pertaining to the proceedings expunged on  

                    condition that the respondent file a full release of all claims  

                    of  whatever  nature  arising  out  of  the  proceedings  and  the  

                    statements and actions of persons and facilities in connection  


                    with the proceedings. Upon the filing of the motion and full  


                    release,   the   court   shall   order   the   court   records   either  

                    expunged         or    sealed,       whichever         the     court      considers  

                    appropriate under the circumstances.  

          22        See ch. 84,  1, SLA 1981, codified as amended at AS 47.30.655-.660 and  




                    Compare ch. 84,  1, SLA 1981, with ch. 109,  11, SLA 1992.  



                    During a legislative hearing, Senator Rick Halford expressed concern that  


expunged civil commitment records would later be relevant, but unavailable, in related  


criminal proceedings.  Comments of Senator Rick Halford at 0:42, Hearing on Senate  

Bill (S.B.) 153 Before the Sen. Judiciary Comm., 17th Leg., 2d Sess. (Apr. 23, 1992).  


                                                             -10-                                                       6911

----------------------- Page 11-----------------------

                   Alaska Statute 47.30.850 states that a respondent, following discharge from  


a treatment facility or the issuance of a court order denying a commitment petition, "may  

at any time move to have all court records pertaining to the proceedings expunged,"  


provided any claims arising from the proceedings are waived.  If the required motion and  

full release are filed, the statute provides that "the court shall order the court records  

either  expunged  or  sealed,  whichever  the  court  considers  appropriate  under  the  




                    To  place  the  remedies  offered  by  AS  47.30.850  in  context,  it  is  worth  


reviewing the different levels of access to civil commitment records.  "Information and  


records obtained in the course of a screening investigation, evaluation, examination, or  


treatment are confidential and are not public records, except as the requirements of a  

hearing  under  AS  47.30.660-47.30.915  may  necessitate  a  different  procedure."26  

Records that are expunged or sealed are subject to greater restriction than records that  


are  merely  confidential.    Access  to  confidential  records  is  restricted  to  the  parties,  



counsel, individuals with a written court order authorizing access, and court personnel. 

Sealed records are available only to the judge and "persons authorized by written order  

          24        (...continued)  

He requested that the bill be rewritten to address this concern,  id. at 0:46; when the  

Committee next met, the bill had been amended to include the option of sealing records.  


Comments  of  Senator  Rick  Halford  at  0:32,  Hearing  on  S.B.  153  Before  the  Sen.  


Judiciary Comm., 17th Leg., 2d Sess. (Apr. 30, 1992); see also Committee Substitute for  

Senate Bill (C.S.S.B.) 153 (JUD), 17th Leg., 2d Sess. (1992).  

          25       AS 47.30.850.  

          26       AS 47.30.845.  

          27       Alaska Admin. R. 37.5(c)(4).  

                                                            -11-                                                       6911

----------------------- Page 12-----------------------



of the court."           The court may allow access to non-public information - including  


                                                                                 -  if  the  court  finds  that  "the  

information  designated  as  confidential  or  sealed 


requestor's interest in disclosure outweighs the potential harm to the person or interests  

                          30                                                               31 


being protected."             The court rules do not define "expunge,"                        but according to Black's  

Law Dictionary , "expunge" means "[t]o erase or destroy."32  


                    Because the parties' briefs did not discuss the statute or its possible effect,  


                                                                                                             But the statute  

we offer no opinion about the full extent of relief the statute provides. 

          28        Alaska Admin. R. 37.5(c)(5).  

          29        Id.  

          30        Alaska Admin. R. 37.7(a). Relevant considerations include, but are not  

limited  to,  the  risk  of  injury  to  individuals,  individual  privacy  rights  and  interests,  


proprietary business information, the deliberative process, and public safety.  Id.  

          31        The probate rules governing civil commitment proceedings contain the  

court rules' only reference to expunged civil commitment records.  See Alaska R. Prob.  


P.  1(b) (stating scope of rules governs "mental commitments under AS 47.30").  The  


probate rules require that indices be kept for commitments. Alaska R. Prob. P. 3(d).  The  


index  of  commitments  is  confidential  and  the  index  of  commitments  for  which  the  

records have been expunged under AS 47.30.850 is kept by number.  Alaska R. Prob.  


P. 3(d), (g).  

          32        BLACK 'S LAW DICTIONARY 621 (8th ed. 2004).  

          33        We  have  addressed  the  expungement  remedy  in  context  of  a  court's  


inherent power to expunge criminal records.  See Farmer v. State, 235 P.3d 1012 (Alaska  


2010); Journey v. State , 895 P.2d 955 (Alaska 1995).  Those cases are distinguishable  

from Mark's situation because the legislature explicitly authorized expungement in the  

civil commitment context.  Nonetheless, our prior discussions of expungement illuminate  

some  potentially  problematic  effects  of  that  remedy.    We  expressed  concern  that  


expungement of records may be too drastic in some contexts.  See Farmer, 235 P.3d at  


 1016 (indicating that expungement of records would remove collateral consequences of  


conviction and was therefore not an appropriate remedy); Journey , 895 P.2d at 957 n.6  



                                                              -12-                                                         6911

----------------------- Page 13-----------------------

does confirm the availability of two remedies - expungement and sealing -  that give  


respondents some ability to ameliorate the potentially adverse effects Mark identifies.  


It therefore supports our view that there is no reason to substantively review Mark's  

now-moot civil commitment appeal.  

                    4.       The sufficiency of existing mootness exceptions  


                    There is no question that involuntary civil commitment can severely affect  

the  civil  rights  of  the  committed  individual.    And  there  is  certainly  an  institutional  


interest in ensuring that each involuntary civil commitment is justified.  But we are not  


persuaded  that  these  factors  require  full  appellate  review  of  every  involuntary  civil  


commitment order, including even those orders whose periods of commitment have  


expired.    In  our  view,  the  existing  recognized  exceptions  to  the  mootness  doctrine  

adequately protect the interests of involuntary civil commitment respondents.  Those  


exceptions  will  permit  substantive  appellate  review  of  those  orders  when  review  is  


justified, despite their technical mootness.  Because no such exception applies here, we  

decline to review Mark's November 2011 commitment order.  

          C.       Alaska Statute 47.30.765 Does Not Supersede The Mootness Doctrine.  


                   Alaska Statute 47.30.765 gives respondents the right to an appeal from an  

                                                 34  Although Mark's briefs did not focus on a statutory  

order of involuntary commitment. 

right to appeal, they referred to the statute to support his argument that we should reach  


the merits of his appeal.  He expanded on this contention at oral argument, where he  

asserted  that  the  abbreviated  nature  of  commitment  hearings  warrants  review  at  the  

          33        (...continued)  

(noting that concerns regarding employer access to criminal history could be satisfied by  


"less drastic measures" than expungement, such as sealing records).  

          34       AS 47.30.765 provides that "[t]he respondent has the right to an appeal  

from an order of involuntary commitment."  

                                                            -13-                                                      6911

----------------------- Page 14-----------------------

appellate level.  In Joan K . we declined to reach an equivalent argument that relied on  


AS  47.30.765  because  we  concluded  that  the  collateral  consequences  exception  



applied.           We  expressed  skepticism,  however,  about  interpreting  the  statute  to  


completely override the judicial policy of not deciding moot cases.                                         

                     Other statutes providing for rights of appeal equivalent to those provided  



by  AS  47.30.765  are  scattered  throughout  Title  47                               and  elsewhere  in  the  Alaska  


 Statutes.        The existence of these statutes has not in practice compelled us to review  



otherwise-moot  appeals.                     Mootness  is  a  judicial  doctrine  that  is  intended  to  avoid  

           35        In re Joan K. , 273 P.3d 594, 597 & n.12 (Alaska 2012).  

           36        Id.  at   597  ("Joan's  interpretation  of  [AS  47.30.765]  as  overriding  the  

judicial policy of not deciding moot cases appears overbroad . . . .").  

           37        For  example,  AS  47.10.080(i)  provides  that  a  parent  "may  appeal  a  

judgment or order, or the stay, modification, setting aside, revocation, or enlargement of  


a judgment or order issued by the court [in a Children in Need of Aid proceeding]."  



                     See, e.g., AS 22.05.010(c) ("A decision of the superior court on an appeal  

from an administrative agency decision may be appealed to the supreme court as a matter  

of right."); AS 22.07.020(d) ("An appeal to the court of appeals is a matter of right in all  


actions and proceedings within its jurisdiction . . . .").  



                     See,  e.g.,  Peter  A.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  


 Children's  Servs.,  146  P.3d  991,  996  (Alaska  2006)  (dismissing  as  moot  father's  


challenge to order adjudicating his children in need of aid); Fairbanks Fire Fighters  


Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 1165, 1168 (Alaska 2002) (dismissing  

as moot appeal from administrative decision);  cf. Sweezey v. State, 167 P.3d 79, 80  

(Alaska App. 2007) (dismissing as moot claim that sentencing judge erroneously rejected  

proposed  mitigating  factor);  Allen  v.  State ,  56  P.3d  683,  685  (Alaska  App.  2002)  


(holding that "when a judge's authority to impose a particular sentence does not rest on  


the  judge's  findings  concerning  contested  aggravating  or  mitigating  factors,  any  

challenges to the judge's findings are moot").  

                                                                -14-                                                         6911

----------------------- Page 15-----------------------



needlessly deciding issues in cases in which there is no actual controversy                                                and which  


would  effectively  result  in  advisory  opinions.                                 We  do  not  read  AS  47.30.765  as  

requiring appellate review of a moot civil commitment dispute.  We express no opinion  


about whether a statute could validly require the courts of this state to review moot issues  


or whether any such statute would violate the separation of powers.                                               

           D.         We Decline To Vacate The Commitment Order.  

                      Finally,  Mark  contends  that  even  if  we  conclude  that  the  collateral  


consequences exception does not apply, we should nonetheless vacate the commitment  


order.  He argues that vacatur serves as a safeguard against the possibility that collateral  


consequences did, in fact, attach to the commitment order.  The State did not brief this  

issue, but at oral argument it opposed routine vacatur in moot commitment-order appeals.  

                      Having concluded that the theoretical possibility of collateral consequences  

does not itself justify review of this moot appeal, we are likewise unconvinced that there  

           40         Ulmer v. Alaska Rest. & Beverage Ass'n                           , 33 P.3d 773, 776 (Alaska 2001)     

("A claim will be deemed moot if it has lost its character as a present, live controversy."      

(quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998))).  

           41         See Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985) (dismissing as  

moot challenge to legislative council contract because legislative session was over and  

the contract at issue had been fully performed, so opinion by court "would be advisory  



           42         We  have  consistently  adhered  to  the  principle  that  "courts  should  not  


resolve abstract questions or issue advisory opinions."  Gilbert M. v. State, 139 P.3d 581,  


586 (Alaska 2006) (quoting  Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska  


 1987)).    "The  separation  of  powers  doctrine  limits  the  authority  of  each  branch  to  


interfere in the powers that have been delegated to the other branches."  Alaska Pub.  

Interest Research Grp. v. State , 167 P.3d 27, 35 (Alaska 2007) (citing Abood v. League  

of Women Voters, 743 P.2d 333, 338 (Alaska 1987)).  

                                                                   -15-                                                             6911

----------------------- Page 16-----------------------



is any reason to vacate the order below.                     We also note that Mark has referred us to no  


reported cases in which courts both dismissed a commitment-order appeal as moot and  


vacated the underlying judgment.                     We therefore decline to vacate the commitment  


V.        CONCLUSION  

                   For these reasons, we DISMISS the appeal as moot.  

          43       Although we are not persuaded it would be appropriate to vacate the order  

in  this  case,  we  express  no  opinion  about  whether  vacatur  might  nonetheless  be  


appropriate under circumstances not present here.  

          44       Mark's reliance on Peter A. v. State , 146 P.3d 991 (Alaska 2006), and City  

of Valdez v. Gavora, Inc., 692 P.2d 959 (Alaska 1984), is unavailing.  Although we  


dismissed both appeals as moot and vacated the underlying judgments, neither of those  


cases is persuasive in the context of a civil commitment-order appeal.  In Peter A. the  


prevailing party voluntarily mooted the case. 146 P.3d at 995.  In  City of Valdez the  

parties reached a settlement agreement that effectively nullified the challenged judgment.  

692 P.2d at 960.  Neither case bears on the issue presented here: whether we should  


routinely vacate involuntary civil commitment orders in moot appeals.  

                                                           -16-                                                      6911

----------------------- Page 17-----------------------

 STOWERS, Justice, with whom MAASSEN, Justice, joins, dissenting.  

                     As  the  court  explains,  the  collateral  consequences  exception  to  the  


mootness doctrine requires this court to decide otherwise-moot cases "when a judgment  


may carry indirect consequences in addition to its direct force, either as a matter of legal  


                                                               But necessarily determining when a judgment  

rules or as a matter of practical effect." 

may carry such indirect consequences for the respondent, or what those consequences  

may be, requires us to investigate the claim before us and find it unworthy of formal  


judicial review in its entirety.                   I find this approach deeply troubling.  I continue to  

believe this court should accept every appeal of an order of involuntary commitment in  

order  to  be  faithful  to  a  citizen's  right  to  appeal  as  promised  by  our  legislature  in  



AS 47.30.765,             and to honor the citizen's right to due process of law given the massive  

                                               48   Significantly, at oral argument the State agreed that  


curtailment of liberty at issue.  

every  commitment  carries  some  collateral  consequences  to  the  respondent's  liberty  


interests and asked us to review the merits of some otherwise-moot commitment orders  


to provide guidance to the trial courts.  I would grant the State's request to review the  

           45        Opinion at 5, quoting            In re Joan K. , 273 P.3d 594, 597-98 (Alaska 2012)   

(quoting Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                        , 146  

P.3d 991, 994-95 (Alaska 2006)).  

           46        For   example,   the   court   believes   M.V.'s   recent   prior   commitments  

effectively  swallow  any  conceivable  collateral  consequences  stemming  from  the  

November   2011   order,   and   the   mere   possibility   of   unparticularized   collateral  

consequences of the last order cannot automatically justify substantive review of every  


order brought before this court.  

           47        AS 47.30.765 provides that "[t]he respondent has the right to an appeal  

from an order of involuntary commitment."  

           48        See In re Joan K., 273 P.3d at 608 (Stowers, J., dissenting).  

                                                                -17-                                                         6911

----------------------- Page 18-----------------------


merits of otherwise-moot commitment orders.                                                            I therefore respectfully dissent.  


                              Under  our  traditional  mootness  analysis,  an  appeal  of  an  involuntary  

commitment order cannot defeat the judicially created doctrine of mootness unless one  



of two judicially created exceptions applies.                                                    While the court believes these exceptions  

adequately  protect  the  interests  of  involuntary  commitment  respondents  to  "permit  


substantive  appellate  review  of  those  orders  when  review  is  justified,"  in  my  view,  

simply determining whether to apply the collateral consequences exception itself in this  


context requires quasi-substantive appellate review, thereby defeating the interests of  



expediency and judicial economy that mootness traditionally promotes and safeguards. 


                            Here, the court goes through a detailed, four-part analysis spanning several  

fact-laden pages to determine that there is no reason to substantively review M.V.'s  

now-moot civil commitment order.  In other words, in order to build a sufficient record  


to  properly  litigate  the  collateral  consequences  exception,  the  State  must  compile  a  

thorough  record  of  prior  commitment  proceedings.    But  the  State  conceded  at  oral  

argument that when "an individual has prior commitments in a remote part of the state  


or out of state, those records might not be available at all."  And the expedited nature of  

these proceedings leaves little time for the formal discovery required to convince the  


court there will or won't be collateral consequences resulting from the order.  Even if the  

              49            The State also suggested in oral argument that deciding these cases on the                                                         

merits would not result in a flood of appeals because the State is "seeing . . . a very small   

number of appeals and . . . that would continue to be the case if individuals knew they     

had to have something on the merits in order to win."  



                            See In re Joan K. , 273 P.3d at 597-98 (adopting collateral consequences  


exception to mootness);  Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 380-81  

(Alaska 2007) (adopting public interest exception to mootness).  



                            Honig v. Doe , 484 U.S. 305, 330-32 (1988) (Rehnquist, C.J., concurring)  

(discussing the practicalities and prudential considerations of the doctrine).  

                                                                                       -18-                                                                                  6911

----------------------- Page 19-----------------------

records were available, the State noted that "we don't want to see these proceedings  

become a parade of someone's past misdeeds just to build a record on the collateral  


consequences issue, because that might well be prejudicial to the individual."  I agree.  


                    Alaska Statute 47.30.765 plainly reflects the legislature's policy decision  


that a person who has been ordered to be involuntarily committed "has" - not "may  


have" - a right to appeal that order:  a "respondent has the right to an appeal from an  


order of involuntary commitment."  That the court identifies other cases where in the  

presence  of  similar  appeal-as-of-right  language  the  court  has  applied  the  mootness  

doctrine only begs the question; more importantly, it ignores the practical reality that in  


every case of involuntary commitment, the 30-day commitment order expires prior to the  

                                 52  In these instances "the citizen's liberty has been alleged to have  


ripeness of the appeal. 

been wrongfully taken by court process," and so the court "should afford the citizen the  


opportunity to prove the error and, if proven, obtain judicial acknowledgment that the  


order was erroneously issued."53  "The injury inflicted by an erroneously issued order of  

involuntary commitment 'lives' until the wrong is righted."54  

                    While I appreciate the court's identification of AS 47.30.850 as a possible  


alternative ground of relief to avert "many of the most onerous collateral consequences  


that potentially attach to an involuntary civil commitment order," I submit that the most  


onerous  consequence  of  an  involuntary  civil  commitment  order  may  in  fact  be  the  

absence of a meaningful appeal.  Under this court's current application of mootness in  


involuntary commitment proceedings, the erroneous issuance of an order curtailing a  

fundamental liberty interest remains a distinct possibility.  

          52        In re Joan K. , 273 P.3d at 607 (Stowers, J., dissenting).  

          53        Id .  

          54        Id . at 608.  

                                                             -19-                                                            6911  

----------------------- Page 20-----------------------


                    But even if one were to disagree with my opinion that the court should  


accept  every appeal of an order of involuntary commitment, there are other alternatives  

far superior to this court's current approach.  One such alternative is the one adopted in  


Minnesota:  a rebuttable presumption that there will be collateral consequences from an  

involuntary  commitment  order  that  precludes  mootness  where  "real  and  substantial  


disabilities" result from a judgment.                      As explained by the Minnesota Supreme Court,  


"[I]f 'real and substantial' disabilities attach to a judgment, we do not require actual  


evidence of collateral consequences but presume such consequences will result. . . .  A  


party may rebut this presumption of collateral consequences only by showing 'there is  


no possibility that any collateral legal consequences will be imposed on the basis of the  


                                            In this scenario, the State has the burden of rebutting the  

challenged [judgment].' " 


presumption, and, if it fails, the case proceeds to the appellate court on the merits.  The  


State conceded at oral argument this "would be a practical way to go" because "it [takes]  

so many more of our resources and the court's resources to adjudicate the collateral  

consequences issue than it would be just to decide the merits of M.V.'s appeal."  I agree  

with the State and remain mystified why the court persists in failing to recognize and  


give real meaning to the great liberty interests at stake in cases where Alaskan citizens  

are involuntarily committed to a mental institution.  Consequently, I must dissent.57  

          55        In re McCaskill , 603 N.W.2d 326, 329 (Minn. 1999) (internal quotation   

marks omitted).  

          56        Id .  (second alteration in original, citations omitted).  

          57        Notwithstanding the court's detailed analysis of M.V.'s case, it did not  


reach the merits of whether there was sufficient evidence to support the superior court's  


issuance of the commitment order.   I also do not reach that issue because, given the  


nature of the court's decision, I am most concerned about M.V.'s and other respondents'  


rights to appeal, and have no reason to examine the merits.  

                                                              -20-                                                             6911  

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