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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Hospitalization of Naomi B. (1/11/2019) sp-7328
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Necessity )
for the Hospitalization of ) Supreme Court Nos. S-15859/16467
) (Consolidated)
NAOMI B. )
) Superior Court No. 3AN-15-00204 PR
)
) O P I N I O N
)
In the Matter of the Necessity
) No. 7328 - January 11, 2019
for the Hospitalization of )
)
LINDA M.
) Superior Court No. 3AN-16-01656 PR
)
)
)
A
ppeal in File No. S-15859 from the Superior Court of the
State of Alaska, Third Judicial District, Anchorage, John
Suddock, Judge. Appeal in File No. S-16467 from the
Superior Court of the State of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Rachel Cella, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for Appellant
Naomi B. James B. Gottstein, Law Project for Psychiatric
Rights, Inc., Anchorage, for Appellant Linda M. Joanne M.
Grace and Laura Fox, Assistant Attorneys General,
Anchorage,and JahnaLindemuth,Attorney General,Juneau,
for Appellee State of Alaska.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
----------------------- Page 2-----------------------
STOWERS, Chief Justice, and CARNEY, Justice.
BOLGER, Justice, concurring.
I. INTRODUCTION
We are presented with two separate appeals from involuntary commitment
orders, brought by two appellants, one of whom also appeals a related involuntary
medication order. The challenged orders expired while the respective appeals were
pending; we consolidated the cases for briefing on whether to revisit our mootness
jurisprudence in involuntary commitment and involuntary medication appeals. We now
hold that all appeals of involuntary admissions for treatment and involuntary medication
are categorically exempt from the mootness doctrine. After reviewing each case on its
merits and finding no error in the orders appealed, we affirm.
II. FACTS AND PROCEEDINGS
A. Naomi B. 1
In January 2015 Adult Protective Services petitioned for an ex parte order
committing Naomi B. to the Alaska Psychiatric Institute (API). She agreed to stay
voluntarily and to take medication, attend groups and meetings, and plan for her
discharge. But after her admission she refused to take medication or participate in
treatment.
Naomi'sstatesoon worsened. Shereported being repeatedly raped, hit, and
assaulted, but API found no evidence to support her allegations after conducting a
physical examand reviewing tapes fromthe facility's surveillance cameras. Her treating
psychiatrist, Dr. David Mack, concluded that Naomi's reports were delusions caused by
mental illness, and he diagnosed her with schizoaffective disorder, bipolar subtype.
1
Pseudonyms have been used throughout this opinion to protect the privacy
of the parties.
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Naomi never demanded to be discharged from API, and while she ate and
maintained her personal hygiene, she could not or would not cooperate with API staff
to plan for her discharge. Concerned that she could not manage her treatment or housing
outside of API, hospital staff filed a petition later that month to involuntarily commit
Naomi for 30 days. The petition alleged that Naomi was "gravely disabled and there
[was] reason to believe that [her] mental condition could be improved by the course of
treatment sought." API also petitioned the court to approve involuntary administration
of psychotropic drugs.
That same day a magistrate judge held hearings on both petitions. Naomi
was represented by an attorney at the hearings, but declined to participate in person. The
2 testified that Naomi had refused to meet with her, that she was therefore
court visitor
unable to offer an opinion about Naomi's capacity to give informed consent to
medication, and that she had been unable to find any advance health care directive in
Naomi's medical records.3
The court next addressed the involuntary commitment petition. Dr. Mack
testified that outpatient treatment would not be adequate for Naomi because she was "at
great risk for exposure to disorganized, aggressive behaviors if she's not surround[ed]
by a professional staff." Dr. Mack also indicated that Naomi was "unable to engage with
[API's] treatment team on basic needs due to her delusional construct" and that API had
not been able to confirm that Naomi had a safe place to live. As a result he believed
2 When an involuntary medication petition is filed, the superior court is
required to appoint an independent court visitor to assist in investigating whether a
patient has capacity to give or withhold informed consent to the administration of
psychotropic medication. AS 47.30.839(d).
3 An advance health care directive could have indicated Naomi's position
regarding psychotropic medication. See AS 47.30.839(d)(2).
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----------------------- Page 4-----------------------
there was no less restrictive placement where Naomi could receive treatment. The court
granted the petition, finding that Naomi was "mentally ill and, as a result, gravely
disabled," and that there was no less restrictive treatment alternative.
The court then turned to the petition for court approval of administration
of psychotropic medication. Dr. Mack testified that API sought to administer two
medications to Naomi: olanzapine, an antipsychotic to address her delusions, and
lorazepam to reduce anxiety and irritability and to treat some side effects of olanzapine.
Dr. Mack acknowledged risks associated with both medications but concluded that the
benefits outweighed the risks. He hoped that the medications could improve Naomi's
condition within a week. He believed that Naomi had no ability to give or withhold
informed consent to the administration of the medications, that the medications were in
her best interests, and that there was no less intrusive means of treating Naomi's
schizoaffective disorder. He also said that Naomi would be offered various forms of
group treatment to help her manage her illness, but that the group therapies alone would
not successfully treat Naomi's disorder. The court granted the petition for medication
"with the amendment that the lorazepam [was to be administered] only as needed."
Naomi's lawyer did not question witnesses, raise objections, or make any
arguments to the court.
The magistrate judge issued a written report detailing the factual and legal
findings from the hearing; the superior court adopted the magistrate judge's
recommended findings and signed the attached orders in February.
Naomi appeals, arguing that the superior court erred in finding that she was
gravely disabled, that there was no less intrusive alternative to involuntary medication,
and that forced medication was in her best interests. Naomi requests that we reverse or
vacate the commitment and medication orders.
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B. Linda M.
Linda M. has a history of mental health issues spanning most of her adult
life. By 2016 she had exhibited paranoia and aggressive behavior, such as spitting at
people, and kicking and throwing things. The Anchorage Police Department's crisis
intervention team responded several times to calls from Linda's mother reporting that
Linda was threatening her. The police described Linda as "agitated" and "very volatile,"
and they eventually arrested Linda for threatening her mother with a shovel and spitting
on her. At the time Linda was already facing a criminal charge for reckless driving in
connection with a car accident.
While in custody for the two criminal cases, Linda was sent to API for an
evaluation and restoration of her competency to stand trial. In July 2016 API filed a
petition to commit Linda for 30 days. During the commitment hearing, Linda's
testimony seemed paranoid and delusional, including statements that members of a drug
cartel had attempted to poison her; a psychiatric nurse practitioner testified that Linda
had schizophrenia. The court found that Linda had a mental illness and as a result posed
a "substantial risk of harm to others." It granted API's petition to commit Linda for up
to 30 days. During her commitment, Linda voluntarily participated in therapy, but she
also swore, lunged, and swung at various API staff members, raising concerns about her
unpredictability and aggressive behavior. The therapy did not lead to improvement, and
the efficacy of the drugs administered by API remained unclear.
In August 2016 API filed a petition to commit Linda for another 90 days
and Linda requested a jury trial. During the trial Linda offered further testimony
reflecting paranoid delusions. The jury unanimously found by clear and convincing
evidence that Linda was mentally ill and that as a result she was "likely to cause harm
to others."
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----------------------- Page 6-----------------------
Approximately one week after the jury verdict, the superior court held an
evidentiaryhearingon whether therewasanylessrestrictivealternativeto hospitalization
at API. Various experts testified and several alternatives were explored. An API mental
health clinician who was certified as an expert in API discharge planning testified that,
because Linda was not taking medication as prescribed, she would not be accepted into
a publicly funded assisted living home. The clinician also testified that a halfway house
for formerly incarcerated individuals would not be appropriate for Linda, even in
conjunction with a community support program, and that privately operated assisted
living facilities would likely reject Linda because of her unpredictability and
aggressiveness. An API psychiatric nurse practitioner similarly testified that Linda
needed to be stabilized using medication at API before her release, that she still needed
"24/7 . . . supervision," and that releasing Linda into the community at that time would
set her up for failure.
Finally, a clinical psychiatrist testified that Linda could be discharged to an
outpatient community support program if safe housing could also be arranged for her,
such as an assisted living facility or other location with professional staff that could
"retain her" if she became agitated. He also discussed a closed facility, Soteria-Alaska,
as a less restrictive alternative to API. He testified that Soteria-Alaska had operated for
seven years in Anchorage and had offered an alternative to the psychiatric inpatient
hospitalization offered at API, but one that still provided "24/7" supervision. But he
testified that Soteria-Alaska was shut down due to funding issues. He opined Soteria-
Alaska would have been a good option for Linda if it were still in operation.
Linda's counsel asserted during closing argument that the evidence had not
established a high probability that a less restrictive alternative would be unsuccessful.
Counsel also argued that Linda "ha[d] the constitutional right to a Soteria-like setting."
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More specifically, counsel argued that "the state cannot de-fund Soteria-Alaska and then
say that because we haven't funded it, there is no less-restrictive alternative."
The superior court determined that, given the jury finding that Linda was
likely to cause harm to others, "a less restrictive alternative would have to . . . protect
others from physical injury." The court reasoned that "none of the less restrictive
alternatives that have been proposed by [Linda] or would otherwise be available will
protect . . . the public from the danger to others that [Linda] currently [poses]." The
court explained that when Linda becomes agitated, it happens quickly, and that no less
restrictive alternative was sufficient to protect the public "other than a facility like API
that is locked and [that] provides 24/7 care." Finally, with regard to Soteria-Alaska as
a proposed alternative, the court stated, "I reject the idea that there's a constitutional right
that would require the state to fund particular kinds of programs. There would be
separation of powers issues, I believe."
The superior court found that there was no less restrictive alternative to
commitment at API. Linda appeals, arguing that the court erred by rejecting Soteria-
Alaska as a feasible less restrictive alternative, and that her commitment order therefore
violated her constitutional right not to be hospitalized where a feasible less restrictive
alternative exists. She requests that we reverse and vacate the 90-day commitment order.
III. STANDARD OF REVIEW
"We apply our independent judgment to issues of mootness because as a
4 We review the superior court's
matter of judicial policy, mootness is a question of law."
factual findings in involuntary commitmentormedication proceedings for clear error and
reverse those findings only if we have a "definite and firm conviction that a mistake has
4 In re Tracy C. , 249 P.3d 1085, 1089 (Alaska 2011) (quoting Clark v. State,
Dep't of Corr. , 156 P.3d 384, 386 (Alaska 2007)); see also In re Jacob S. , 384 P.3d 758,
764 (Alaska 2016).
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----------------------- Page 8-----------------------
5
been made." However, whether those findings meet the statutory requirements for
involuntary commitment or medication is a question of law to which we apply our
6
independent judgment. The independent-judgment standard also applies to questions
regarding the interpretation of constitutional and statutory provisions, adopting "the rule
7
of law that is most persuasive in light of precedent, reason, and policy."
IV. DISCUSSION
A. We Will Consider The Merits Of Naomi's And Linda's Appeals
Because We Hold That The Public Interest Exception Applies To All
Appeals From Involuntary Admission For Treatment.
As typically happens in involuntary admission for treatment appeals,
Naomi's and Linda's commitment orders and Naomi's medication order expired while
their appeals were pending. Under our prior ruling in Wetherhorn v. Alaska Psychiatric
8
Institute, this would render their appeals moot. In its initial briefing in Naomi's case,
the State argued that Naomi's case should be dismissed as moot. Naomi argued that her
9
case fell under both the public interest exception to the mootness doctrine and the
5 In re Jacob S., 384 P.3d at 763-64 (quoting Wetherhorn v. Alaska
Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007)).
6 Id. at 764 (citing Wetherhorn, 156 P.3d at 375).
7 Id. (quoting Wetherhorn, 156 P.3d at 375).
8 156 P.3d at 380-81 (holding appeal of commitment order moot as 30-day
commitment period had ended).
9 See In re Heather R., 366 P.3d 530, 532 (Alaska 2016) (applying public
interest exception to reach merits of due process challenge to expired evaluation order);
see also In re Daniel G., 320 P.3d 262, 267-68 (Alaska 2014) (applying public interest
exception to due process challenge to ex parte 72-hour involuntary evaluation order).
An otherwise moot claim may be considered under the public interest exception if: (1)
"the disputed issues are capable of repetition"; (2) applying the mootness doctrine "may
(continued...)
-8- 7328
----------------------- Page 9-----------------------
10
collateral consequences exception. She also argued, alternatively, that merit-based
review of commitment appeals was mandated by federal due process concerns and that
11 We rejected this statutory
she had a statutory right to appeal under AS 47.30.765.
12 but Naomi argued that we should overrule that
argument in In re Mark V. (Mark V. I),
decision.
In Linda's case the State suggested that we could consider the merits of
Linda's case under the public interest exception. Linda agreed that we should do so, or,
alternatively, that we should revisit our mootness jurisprudence in the involuntary
commitment context andhear all appeals ofpsychiatricconfinementorderson themerits.
We consolidated the two cases on appeal and asked all parties for supplemental briefing
on whether - and if so, how - we should revisit our case law on moot involuntary
commitment and medication appeals.
9 (...continued)
cause review of the issues to be repeatedly circumvented"; and (3) the issues "are so
important to the public interest as to justify overriding the mootness doctrine." Heather
R., 366 P.3d at 532 (quoting Wetherhorn, 156 P.3d at 380-81).
10 See In re Joan K., 273 P.3d 594, 597-98 (Alaska 2012) ("[T]he collateral
consequences doctrine 'allows courts to decide otherwise-moot cases when a judgment
may carry indirect consequences in addition to its direct force, either as a matter of legal
rules or as a matter of practical effect.' "(quoting Peter A. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 146 P.3d 991, 994-95 (Alaska 2006))). Our
application of the collateral consequences exception in Joan K. was limited to appeals
from a person's first involuntary commitment order. Id. at 598.
11 AS 47.30.765 provides: "The respondent has the right to an appeal from
an order of involuntary commitment. The court shall inform the respondent of this
right."
12 324 P.3d 840, 847-48 (Alaska 2014).
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We do not lightly overturn our previous decisions. After reexamining our
decisions regarding the mootness doctrine as applied to cases involving involuntary
admission for treatment and medication, and in light of the broad agreement in the
supplemental briefing regarding the practical consequences that have followed from
those decisions - discussed in more detail below - we are persuaded that our previous
rulings with regard to mootness in these contexts were mistaken and that more good than
harm will come from overturning them.
1. Mootness in commitment appeals - Wetherhorn and its
progeny
A history of our mootness jurisprudence is useful for context. Although the
legislature amended Alaska's mental health statutes in 1981 in response to a nationwide
13 we heard few appeals from such cases until more than
shift in mental health treatment,
20 years later. In 2007, in Wetherhorn v. Alaska Psychiatric Institute, we considered a
constitutional challenge to the statutory definition of "grave disability" and a due process
challenge to the proceedings in which the appellant was involuntarily committed to API
for 30 days.14 The appellant also challenged the sufficiency of the evidence underlying
her commitment, but we declined to consider that challenge because the commitment
period had "long since passed," rendering the question moot.15 We considered but
declined to apply the public interest exception, reasoning that "Wetherhorn was
committed based on a specific set of facts," that "[i]f it were to become necessary to seek
Wetherhorn's commitment again, the hearing would be based on a different set of facts
specific to different circumstances," and that "factual questions are not capable of
13 Ch. 84, § 1, SLA 1981.
14 156 P.3d at 375-80.
15
Id. at 380-81.
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16
repetition." Wetherhorn thus established that appeals from commitment orders are
moot when the appellant has already been released before the appeal is heard and that the
public interest exception would apply only to generally applicable questions of law and
not to questions of fact like sufficiency-of-the-evidence challenges.
Our 2012 opinion in In re Joan K. departed from the strict holding of
Wetherhorn and adopted a "collateral consequences exception" to the mootness doctrine
17 The appellant in that case noted that several other
in involuntary commitment appeals.
jurisdictions had applied the collateral consequences exception to involuntary
commitment appeals on the basis of, for example, "social stigma, adverse employment
restrictions, application in future legal proceedings, and restrictions on the right to
possess firearms."18 We concluded "that there are sufficient general collateral
consequences, without the need for a particularized showing, to apply the doctrine in an
otherwise-moot appeal from a person's first involuntary commitment order."19 Because
Joan K. involved the appellant's first involuntary commitment, we reviewed the merits
20 But we also "note[d] that some number of prior
of her evidentiary challenges.
involuntary commitment orders would likely eliminate the possibility of additional
16 Id. at 381.
17 273 P.3d 594, 596-98 (Alaska 2012).
18 Id. at 597 (footnotes omitted) (first citing In re Alfred H.H., 910 N.E.2d 74,
84 (Ill. 2009); State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980); State v. J.S., 817 A.2d
53, 55-56 (Vt. 2002); then citing Alfred H.H., 910 N.E.2d at 84; then citing Alfred H.H.,
910 N.E.2d at 84; In re Hatley, 231 S.E.2d 633, 634-35 (N.C. 1977); and then citing In
re Walter R., 850 A.2d 346, 349 (Me. 2004)).
19 Id. at 598.
20 Id. at 598-602.
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21
collateral consequences, precluding the doctrine's application." To illustrate the point,
we cited Bigley v. Alaska Psychiatric Institute , which described a " 'revolving door'
pattern of arrest, hospitalization, release and relapse" in which the appellant had been
22 We did not, however, explicitly limit the collateral
admitted to API at least 68 times.
consequences exception to an appellant's first involuntary commitment or specify what
number of prior commitments would render further collateral consequences negligible.
Joan K. also cursorily presented thequestion whether AS 47.30.765, which
provides that the respondent to an involuntary commitment petition "has the right to an
appeal from an order of involuntary commitment," supersedes the mootness doctrine in
this context.23 Because we adopted and applied the collateral consequences exception,
we did not reach this question, but we expressed some skepticism.24 We addressed this
25 There we noted that other statutes also provide
issue two years later in Mark V. I .
"rights of appeal equivalent to those provided by AS 47.30.765"26 and that "[t]he
existence of these statutes ha[d] not in practice compelled us to review otherwise-moot
21 Id. at 598.
22 Id. at 598 n.18 (citing Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 172-
73 (Alaska 2009)).
23 Id. at 597.
24 Id. ("Although Joan's interpretation of the statute as overriding the judicial
policy of not deciding moot cases appears overbroad, we do not need to address this
argument . . . .").
25 324 P.3d 840, 847-48 (Alaska 2014).
26 Id. at 847 (first citing AS 47.10.080(i) (right to appeal judgments in child-
in-need-of-aid proceedings); then citing AS 22.05.010(c) (right to appeal administrative
agency decisions to the superior court); AS 22.07.020(d) (providing that "[a]n appeal to
the court of appeals is a matter of right in all actions and proceedings within its
jurisdiction")).
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27
appeals." We concluded the statute did not "requir[e] appellate review of a moot civil
commitment dispute." 28
Our opinion in In re Dakota K. addressed the question - left unresolved
by Joan K. - of which party bears the burden to show the existence or non-existence
of collateral consequences.29 We concluded that the party opposing mootness bears "the
burden to establish the fact of collateral consequences."30 Because the appellant in that
case had not made a showing or even alleged that the challenged involuntary
commitment was his firstor that any other collateral consequences applied, we dismissed
the appeal as moot.31
That same year we addressed a procedural issue concerning mootness in
In re Reid K.32 We recognized that because the mootness issue was first addressed in the
State's appellee's brief, the appellant had not had a chance to demonstrate that his claims
were not moot or that they fell within a mootness exception doctrine until the reply
33 To remedy this procedural hurdle, we suggested that it would be "best practice
brief.
27 Id. at 847-48.
28 Id. at 848.
29 354 P.3d 1068, 1071-72 (Alaska 2015).
30 Id. at 1072-73.
31 Id. at 1073.
32 357 P.3d 776, 782-83 (Alaska 2015).
33 Id. at 782. This is problematic because, under Alaska Appellate Rule 212,
a reply brief is limited to 20 pages and must be filed within 20 days after service of the
appellee's brief. Where mootness is raised for the first time in the appellee's brief, this
could make it difficult for the appellant to address the issue in full within the time and
space restrictions of a reply brief without forgoing substantive arguments.
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----------------------- Page 14-----------------------
for the State to move to dismiss appeals of commitment orders as moot before briefing
34
commences when no mootness exception is readily apparent."
We explained that this
procedure might "save scarce public attorney and judicial resources by avoiding
35
merits-based briefing" in cases that would ultimately be dismissed as moot.
2. Our mootness jurisprudence has proved unworkable in
practice.
In their supplemental briefing the parties agree that over the past decade,
our mootness jurisprudence as applied to involuntary commitment and medication
appeals has resulted in significant time and effort spent addressing mootness issues.
Counsel for both the State and Naomi indicate that in commitment appeals, briefing and
litigating mootness is often more time- and resource-consuming than addressing the
actual merits of any particular case. The State argues that "[t]he collateral consequences
exception can be particularly difficult to litigate because its applicability can hinge on
facts that may not be in the appellate record."
The procedure we laid out in Reid K. for a pre-briefing motion to dismiss
on mootness grounds was not used in either of these cases. Naomi's attorney, a public
defender, indicates that "in appeals involving the Public Defender Agency, it does not
appear that the Reid K. [procedure] has been utilized at all." The State concedes that it
has not effectively implemented the Reid K. procedure, noting that it can be difficult to
determine if the issues raised on appeal would fall within a mootness exception before
the appellant's arguments are articulated in the opening brief. Naomi further argues that
even if the Reid K. procedure had been used, addressing the potential applicability of a
mootness exception "entails reviewing the record, researching the relevant issues, and
34 Id.
35 Id. at 783.
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----------------------- Page 15-----------------------
filing a detailed response to the dismissal motion that is not unlike a merits-based brief."
Thus, she argues, if a mootness exception even arguably applies, using the Reid K.
procedure merely "shifts resources to an earlier stage in the case but does not
meaningfully save them."
A review of our past and pending cases also indicates that mootness has
dominated appeals in theinvoluntary commitment context: as of February 2018 -when
we heard oral arguments on this issue - all but three of our prior decisions in post-
Wetherhorn commitment appeals directly addressed, to some extent, whether the
36 Similarly, of the commitment cases pending before us
commitment appeal was moot.
that had been fully briefed at that time, almost all included briefing on mootness.
We have consistently held that we will not reconsider prior rulings without
compelling reasons for doing so: "We will overrule a prior decision only when clearly
convinced that the rule was originally erroneous or is no longer sound because of
changed conditions, and that more good than harm would result from a departure from
36 See In re Mark V. (Mark V. II ), 375 P.3d 51, 55-56 (Alaska 2016); In re
Heather R. , 366 P.3d 530, 532 (Alaska 2016); In re Reid K., 357 P.3d at 780-83; In re
Dakota K. , 354 P.3d at 1070-73; Mark V. I , 324 P.3d 840, 843-48 (Alaska 2014); In re
Daniel G. , 320 P.3d 262, 267-69 (Alaska 2014); In re Stephen O. , 314 P.3d 1185, 1191-
92 (Alaska 2013); In re Jeffrey E. , 281 P.3d 84, 86 (Alaska 2012); In re Joan K. , 273
P.3d 594, 596-98 (Alaska 2012); In re Tracy C. , 249 P.3d 1085, 1089-91 (Alaska 2011);
Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 179 (Alaska 2009); E.P. v. Alaska
Psychiatric Inst. , 205 P.3d1101,1106-08 (Alaska2009); WayneB. v. Alaska Psychiatric
Inst., 192 P.3d 989, 990-91 (Alaska 2008); Maness v. Daily , 184 P.3d 1, 7-8 (Alaska
2008).
The outliers are Wetherhorn v. Alaska Psychiatric Institute, 167 P.3d 701
(Alaska 2007), which addressed only an attorney's fee dispute arising out of the first
Wetherhorn case, and two cases where we addressed the challenged involuntary
commitment without discussing mootness, but still considered whether a related
involuntary medication appeal was moot. In re Jacob S., 384 P.3d 758, 769-70 (Alaska
2016); In re Gabriel C., 324 P.3d 835, 837-40 (Alaska 2014).
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----------------------- Page 16-----------------------
37
precedent." We have recognized that our precedent may be overturned as "originally
38
erroneous" if it has "prove[d] to be unworkable in practice."
As we explained in Dakota K., "[m]ootness is a judicially created doctrine
39 Our mootness jurisprudence has
meant to promote expediency and judicial economy."
failed to achieve these goals: more, rather than fewer, resources of public attorneys and
the court have been spent litigating mootness since Wetherhorn, with few if any
corresponding savings in resources spent on merits-based briefing.
In light of these factors it is clear to us that our current mootness
jurisprudence, as it applies to the involuntary commitment context, has indeed proved
to be unworkable in practice. But that does not answer the question of what a more
appropriate rule would be. To answer that, we need to reconsider our mootness
jurisprudence in more detail.
3. The public interest exception is categorically applicable to
involuntary commitment appeals.
As explained above, we will hear an otherwise moot case where it falls
under the public interest exception to mootness. The State suggests that the public
interest exception may always be applicable to justify appellate review of involuntary
commitment orders. As we have applied it, the public interest exception depends on
three factors: "(1) whether the disputed issues are capable of repetition, (2) whether the
mootness doctrine, if applied, may cause review of the issues to be repeatedly
37 Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska
2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859
(Alaska 2003)).
38 Khan v. State, 278 P.3d 893, 901 (Alaska 2012) (quoting Thomas, 102 P.3d
at 943).
39 354 P.3d at 1070.
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----------------------- Page 17-----------------------
circumvented, and (3) whether the issues presented are so important to the public interest
as to justify overriding the mootness doctrine." 40
The second factor will always favor applying the exception in involuntary
commitment appeals: as we explained in E.P. v. Alaska Psychiatric Institute, "[i]t is
quite unlikely that an appeal from a 30-day or 90-day commitment, or even a 180-day
commitment, could be completed before the commitment has expired."41 And we have
repeatedly held that some issues in involuntary commitment appeals are important to the
public interest - the third factor - because an involuntary commitment is a "massive
curtailment of liberty."42
Wherewehaveconsideredthepublicinterest exception inthepast, wehave
generally held that disputed questions are not "capable of repetition" when they "turn on
43 In some cases we have applied this rule strictly.
unique facts unlikely to be repeated."
For example, in Wetherhorn we concluded that the public interest exception did not
44 Similarly,
apply because "Wetherhorn was committed based on a specific set of facts."
in In re Reid K. we concluded that a sufficiency-of-the-evidence challenge based on the
40 Wetherhorn, 156 P.3d at 380-81 (quoting Akpik v. State, Office of Mgmt.
& Budget , 115 P.3d 532, 536 (Alaska 2005)).
41 205 P.3d at 1107; see also Joan K., 273 P.3d at 608 (Stowers, J., dissenting)
("[I]t is practically impossible to perfect an appeal of an order that by its terms will
expire in 30 days.").
42 Wetherhorn, 156 P.3d at 375 (quoting Humphrey v. Cady, 405 U.S. 504,
509 (1972)); accord In re Tracy C., 249 P.3d 1085, 1090 (Alaska 2011) (quoting E.P.,
205 P.3d at 1107).
43 E.P., 205 P.3d at 1107; see also Tracy C., 249 P.3d at 1094 ("[T]he public
interest exception to the mootness doctrine applies because Tracy presents a question of
statutory interpretation that is capable of repetition.").
44 156 P.3d at 381.
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alleged unreliability of clinical tests presented as evidence did not fall under the public
interest exception because "the trial court is the most appropriate forum in which to
evaluate and weigh competing fact-based arguments regarding the reliability of
evidence."45
However, in other cases we have applied the "capable of repetition"
element more flexibly. For example, in E.P. the appellant raised both legal and factual
challenges to his commitment order.46 The latter included the question whether E.P. -
whose history of alcohol and inhalant abuse had resulted in organic brain damage,
dementia, personality disorder, and psychosis47 - met the statutory requirements for
involuntary commitment.48 We concluded that "E.P.'s fact-based claims are capable of
repetition to any addict whose substance abuse causes organic brain damage," even if the
49
abused substance were something other than inhalants.
On re-examination, we are persuaded that the "capable of repetition"
element should be applied broadly in the context of involuntary commitment appeals,
and that a case need not be capable of being repeated identically in order for the public
interest exception to apply. Although every involuntary commitment proceeding is
based on a particular set of facts, such proceedings occur frequently, and it is not
uncommon for similar fact patterns to reoccur, either in a subsequent proceeding
45 357 P.3d 776, 781 (Alaska 2015).
46 205 P.3d at 1107.
47 Id. at 1103-04.
48 Id. at 1107.
49 Id.
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50 51
involving the same respondent, or in a different case entirely. Accordingly, an
opinion considering whether acommitment order in onecasewas supportedby sufficient
evidence will likely be useful as guidance by analogy to future commitment proceedings.
By contrast, declining review of commitment appeals based on mootness effectively
deprives trial courts of guidance on how to apply the statutory requirements to the facts
of individual cases.
We conclude that appeals from involuntary commitment orders are
categorically subject to the public interest exception, whether the appeal is premised on
aquestion ofstatutory or constitutional interpretation or on an evidence-based challenge.
While we reaffirm that the trial court is indeed the correct forum for evaluating and
52 and we therefore will not second-
weighing the reliability and credibility of evidence
guess the trial court's findings of fact where they are supported by evidence in the
record, that does not preclude us from considering whether the findings were clearly
erroneous or whether they were sufficient to satisfy legal requirements.
50 See id. (noting that the circumstances underlying E.P.'s commitment "were
not only capable of repetition . . . , but they were repeated, because E.P. was committed
three times on the same facts").
51 Compare Mark V. II, 375 P.3d 51, 54 (Alaska 2016) (respondent was found
"gravely disabled" because of paranoid schizophrenia causing delusions and bizarre
behavior), with Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 172-73 (Alaska 2009)
(same); and compare In re Jacob S., 384 P.3d 758, 762-63 (Alaska 2016) (respondent
was found a danger to others after paranoid delusions caused him to attack his neighbor
and attempt to set her house on fire on multiple occasions), with In re Reid K., 357 P.3d
776, 777-78 (Alaska 2015) (respondent was found "likely to cause harm to himself or
others" after acting on hallucinations instructing him to harm and kill others).
52 See Reid K., 357 P.3d at 781.
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4. The public interest exception is also categorically applicable to
involuntary medication appeals.
Just like involuntary commitment proceedings, involuntary medication
53
proceedings implicate "fundamental constitutional guarantees of liberty and privacy."
And medication petitions are virtually always filed in conjunction with a petition for
involuntary commitment, with hearings on the two petitions often taking place before the
same judge on the same day. As with involuntary commitment appeals, because "it is
doubtful that an appeal from a medication order could ever be completed within the
54
order's period of effectiveness," such cases are likely to routinely evade timely review.
We have previously held that the public interest exception applies "in order
to clarify therequirementsforprotecting constitutionalrights in [involuntary medication]
55
proceedings."
Although every involuntary medication order is of course based on the
facts and circumstances of a particular case, similar fact patterns are likely to reoccur.
By continuing to apply the mootness doctrine to involuntary medication appeals, we
deprive litigants and the superior court of helpful guidance in applying the statutory
framework. We therefore also conclude that the public interest exception categorically
53 Bigley,208 P.3d at 179 (quoting Myers v.Alaska PsychiatricInst. , 138 P.3d
238, 250 (Alaska 2006)). We observed in Myers : "Side effects aside, the truly intrusive
nature of psychotropic drugs may be best understood by appreciating that they are
literally intended to alter the mind. Recognizing that purpose, many states have equated
the intrusiveness of psychotropic medication with the intrusiveness of electroconvulsive
therapy and psychosurgery." 138 P.3d at 242 (footnote omitted) (first citing Riggins v.
Nevada, 504 U.S. 127, 134 (1992); then citing Jarvis v. Levine, 418 N.W.2d 139, 146
(Minn. 1988); In re K.K.B. , 609 P.2d 747, 749 (Okla. 1980)).
54 Myers, 138 P.3d at 245.
55 Bigley, 208 P.3d at 179 (citing Myers, 138 P.3d at 244).
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applies to involuntary medication appeals, and we will hear all such appeals on the
56
merits.
5. Overturning our mootness jurisprudence would result in more
good than harm.
Now that we have identified a new and better approach to mootness in the
involuntary commitment and medication contexts, we must turn to the second
requirement to depart from stare decisis, which dictates we "balance the benefits of
57
adopting a new rule against the benefits of stare decisis." The benefits of reaching the
merits of involuntary commitment appeals were articulated in the dissenting opinion to
In re Joan K. :
Of first importance, the citizen's liberty has been alleged to
have been wrongfully taken by court process; the court
should afford the citizen the opportunity to prove the error
and, if proven, obtain judicial acknowledgment that the order
was erroneously issued. Giving the citizen this opportunity
will assure the citizen that she will be heard, and that if a
lower court has erred, that error will not go unnoticed or
unremedied, at least to the extent that the erroneous order will
be reversed and vacated. Public confidence in the judicial
branch demands that we hold ourselves accountable.
Second, in this age of prevalent information mining,
collection, and storage into increasingly large, inter-
connected, and searchable data banks, the fact that a citizen
has been involuntarily committed to a mental institution will
56 We agree with the concurrence's disavowal of Mark V. 's limitation of the
collateral consequences exception to appeals of a first commitment order; however, we
are unpersuaded by its criticism of the public interest exception's categorical application
to involuntary admission for treatment appeals. The magnitude of the interest at stake
in these cases - the deprivation of liberty - removes them from the concurrence's
concern that this exception will be applied to "routine cases."
57 State v. Carlin, 249 P.3d 752, 761 (Alaska 2011).
-21- 7328
----------------------- Page 22-----------------------
follow that individual for all of her life. She should be given
the means to effectively challenge that order through appeal
regardless of the fact that by the time her appeal is ripe for
decision, the 30 days will have long since expired and she
will have been released from State custody. The injury
inflicted by an erroneously issued order of involuntary
commitment "lives" until the wrong is righted. [58]
The same reasoning applies to involuntary medication appeals.
On the other side of the scales are the benefits of stare decisis: "providing
guidance for the conduct of individuals, creating efficiency in litigation by avoiding the
relitigation of decided issues, and maintaining public faith in the judiciary."59 Declining
to decide such appeals on mootness grounds provides no guidance to the general public,
and little to no guidance to litigants and the superior court in involuntary commitment
and medication proceedings. On the contrary, as suggested earlier, our mootness
jurisprudence may in fact have deprived the superior court of guidance in how to apply
the civil commitment and forced medication statutes to the facts of individual cases.
Second, as discussed above, although our intent was to promote efficiency
in litigation, experience has shown that this has not happened. Because the mootness
doctrine as we have applied it depends on the specific circumstances and arguments
raised on appeal, it has instead caused repeated extended litigation over mootness rather
than over the actual merits of a case.
Finally, we conclude that to the extent public faith in the judiciary may be
harmed by our change of direction in this case, the risk is vastly outweighed by holding
the judiciary as a whole accountable through merit-based review of involuntary
commitment and medication orders.
58 273 P.3d 594, 607-08 (Alaska 2012) (Stowers, J., dissenting).
59 Carlin, 249 P.3d at 761-62.
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6. We will hear all involuntary admission for treatment and
involuntary medication appeals on the merits.
For these reasons, we conclude that the public interest exception applies
categorically to appeals from orders for involuntary admission for treatment and
60
involuntary medication.
We will hear such cases on their merits even where the
underlying order has expired and the respondent has been released or no longer subject
61
to forced medication.
Because we conclude that all involuntary admission for treatment and
medication appeals are subject to the public interest exception, it is not necessary for us
to reconsider whether AS 47.30.765 mandates judicial review of otherwise-moot cases,
and we decline to do so; we similarly do not address Naomi's argument that judicial
review on the merits of commitment appeals is mandated by federal due process
concerns. But to the extent that our prior decisions on mootness in the involuntary
admission for treatment and medication contexts are inconsistent with this opinion, they
are overruled. We emphasize that because our decision here is based on circumstances
60 We note that this holding is not limited to the kinds of involuntary
commitment and involuntary medication appeals that Naomi and Linda bring here;
rather, it covers appeals of any order for involuntary hospitalization or treatment in the
mental health context. We have previously applied the public interest exception to at
least one other type of involuntary hospitalization appeal: a due process challenge to an
order authorizing up to 72 hours' confinement for psychiatric evaluation pursuant to
AS 47.30.715. See In re Heather R. , 366 P.3d 530, 532 (Alaska 2016); In re Daniel G. ,
320 P.3d 262, 268 (Alaska 2014). We hold today that regardless of the type of
involuntary admission or medication proceeding being challenged or the legal basis for
appeal, the public interest exception authorizes us to consider any such appeal on the
merits.
61 The parties in futurecommitmentand medication appeals need not brief the
application of the mootness doctrine or its exceptions, and there is no need for parties in
superior court proceedings to address collateral consequences for purposes of making a
record for appellate review.
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unique to appeals from involuntary admission and medication proceedings, our ruling
here is limited to such cases and should not be construed as altering in any way our
approach to mootness in other contexts.
B. The Superior Courts Did Not Err In Granting API's Commitment
Petitions For Naomi And Linda.
Like the United States Supreme Court, we have characterized involuntary
commitment for a mental illness as a "massive curtailment of liberty" that demands due
process of law. 62
We have also recognized that constitutional rights "extend 'equally to
mentally ill persons' so that the mentally ill are not treated 'as persons of lesser status or
63
dignity because of their illness.' " Under both the U.S. Constitution and the Alaska
64
Constitution, no person may be deprived of liberty without due process of law, but we
have "declared Alaska's constitutional guarantee of individual liberty to be more
65
protective" than its federal counterpart. But when a person has been found to be
gravely disabled, as Naomi has been, the State's power of parens patriae authorizes it
66
to commit her for involuntary treatment.
Similarly, when a person has been found
62 Wetherhorn v. Alaska Psychiatric Inst. , 156 P.3d 371, 375-76 (Alaska
2007) (first quoting Humphrey v. Cady , 405 U.S. 504, 509 (1972); then citing Addington
v. Texas, 441 U.S. 418, 425 (1979)).
63 See Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 248 (Alaska 2006)
(quoting Rivers v. Katz, 495 N.E.2d 337, 341 (N.Y. 1986)).
64 U.S. Const. amend. XIV, § 1; Alaska Const. art. I, § 7.
65 Myers, 138 P.3d at 245 (citing Breese v. Smith, 501 P.2d 159, 170 (Alaska
1972)).
66 E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1108 n.24 (citing Rust v.
State, 582 P.2d 134, 139 n.16 (Alaska 1978)); see also Myers, 138 P.3d at 249 ("The
doctrine of parens patriae refers to the inherent power and authority of the state to
(continued...)
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likely to cause harm to others, as Linda has been, the State has a compelling interest in
67
protecting the public, grounded in its police power.
1. The superior court's finding that Naomi was gravely disabled is
not clearly erroneous.
A court may issue an order committing an individual to a treatment facility
for a 30-day period only if it "finds, by clear and convincing evidence, that the
[individual] is mentally ill and as a result is likely to cause harm to [herself] or others or
68
is gravely disabled." Alaska Statute 47.30.915(9) defines "gravely disabled" as "a
condition in which a person as a result of mental illness" either:
(A) is in danger of physical harm arising from such
complete neglect of basic needs for food, clothing, shelter, or
personal safety as to render serious accident, illness, or death
highly probable if care by another is not taken; or
(B) will, if not treated, suffer or continue to suffer
severe and abnormal mental, emotional, or physical distress,
and this distress is associated with significant impairment of
judgment, reason, or behavior causing a substantial
66 (...continued)
protect 'the person and property' of an individual who 'lack[s] legal age or capacity.' "
(alteration in original) (first quoting Pub. Defender Agency v. Superior Court, Third
LACK 'S
Judicial Dist., 534 P.2d 947, 949 (Alaska 1975); and then quoting non sui juris, B
LAW DICTIONARY (8th ed. 2004))).
67 See Wetherhorn, 156 P.3d at 376 n.13 ("A person who presents a danger
to others is committed under the state's police power. A person who requires care and
treatment is committed through exercise of the state's parens patriae power. One who
poses a danger to himself is committed under a combination of both powers." (quoting
Rust v. State , 582 P.2d 134, 139 n.16 (Alaska 1978))); see also Myers , 138 P.3d at 248
(noting that "the state's power of civil commitment sufficed to meet its police-power
interest" in protecting the public and the patient from the danger posed to herself or
others).
68 AS 47.30.735(c).
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deterioration of the person's previous ability to function
independently.
We have noted that "[i]t is not enough to show that care and treatment of
an individual's mental illness would be preferred or beneficial or even in [that person's]
69 Instead, for a court to properly commit an individual under
best interests."
AS 47.30.915(9)(B), there must be "a level of incapacity that prevents the person in
question from being able to live safely outside of a controlled environment."70 The level
of incapacity must be severe enough to "justify the social stigma that affects the social
position and job prospects of persons who have been committed because of mental
illness."71
Naomi argues that the evidence presented to the superior court was
insufficient to support a finding that she was gravely disabled. She asserts that the
court's reliance on Dr. Mack's testimony was misplaced because his testimony about her
housing situation was "speculative," and that other evidence of her risk of harm if
released from API was "weak." She further argues that her willingness to remain in the
hospital suggested a level of amenability to treatment that brought her outside the
statutory definition of "gravely disabled." Naomi's arguments lack merit.
Dr. Mack's uncontrovertedtestimonywasthatNaomididnot havehousing,
that Naomi's disorder was severe enough that she could not be expected to find housing
on her own, and that she may not have been able to eat and shower regularly unless API
69 Wetherhorn v. Alaska Psychiatric Inst. , 156 P.3d 371, 378 (Alaska 2007)
(first alteration in original) (quoting In re LaBelle , 728 P.2d 138, 146 (Wash. 1986) (en
banc)).
70 In reStephen O., 314 P.3d 1185, 1193 (Alaska 2013) (quoting Wetherhorn,
156 P.3d at 378).
71 Wetherhorn, 156 P.3d at 378.
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----------------------- Page 27-----------------------
provided her those amenities. Naomi acknowledged that she was unable to engage in
discharge planning because "[s]he talked over the doctors or others trying to
communicate with her" and "sometimes continued shouting even after returning to her
own room." The superior court found that Naomi's delusions of rape and bodily harm
and that her psychiatric status had become "more acute" during the time that she refused
to take medication or to participate in planning her treatment.
Naomi points to nothing in the record contradicting Dr. Mack's testimony.
Naomi's attorney asked no questions of Dr. Mack and presented no countervailing
evidence to the court. Dr. Mack's testimony supports the court's finding that clear and
convincing evidence showed Naomi to be gravely disabled. The court did not specify
whether it found Naomi gravely disabled under subsection (A) or (B) of
AS 47.30.915(9); we conclude that the court did not err in issuing the commitment order
because uncontroverted evidence supports either or both findings. We affirm the court's
finding as not clearly erroneous in this case but take this opportunity to remind the
superior court of the importance -both for ensuring judicial transparency and for aiding
appellate review - of specifying the precise statutory grounds on which it makes
findings of grave disability.
2. The superior court did not err in determining there was no
feasible less restrictive alternative to hospitalizing Linda at API.
After a court has found that a person is gravely disabled or poses a danger
to herself or others, the court must consider whether that person should be involuntarily
committed for treatment, or whether there is a less restrictive alternative available.
Alaska Statutes 47.30.735(d) and AS 47.30.755(b) authorize commitment only if no
feasible less restrictive alternative treatment is available. 72
72 In re Jacob S., 384 P.3d 758, 768 (Alaska 2016) (requiring courts to
(continued...)
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"We determine the boundaries of individual rights guaranteed under the
Alaska Constitution by balancing the importance of the right at issue against the state's
73
interests in imposing the disputed limitation." Involuntary commitment places a
substantial burden on a fundamental right; accordingly the State must " 'articulate a
compelling [state] interest' and . . . demonstrate 'the absence of a less restrictive means
to advance [that] interest.' "74
To that end, we have concluded that "[f]inding that no less
restrictive alternative exists is a constitutional prerequisite to involuntary
hospitalization."75
a. A less restrictive alternative to involuntary commitment
is not "feasible" or legally relevant if it does not exist.
Linda argues on appeal that the superior court erred by rejecting Soteria-
Alaska as a less restrictive alternative, and that it w as therefore a violation of Linda's
constitutional right to liberty to order her committed to API. The State posits that there
was no error, citing our statement in Bigley v. Alaska Psychiatric Institute that for a
program to be considered a less restrictive alternative, "the alternative must actually be
available, meaning that it is feasible and would actually satisfy the compelling state
72 (...continued)
"consider whether a less restrictive alternative would provide adequate treatment" when
involuntary commitment is sought); Mark V. II, 375 P.3d 51, 58-59 (Alaska 2016)
(requiring apetitioner seeking involuntary commitment to proveby clear andconvincing
evidence that there are no less restrictive alternatives).
73 Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 245 (Alaska 2006).
74 Id. at 245-46 (alterations in original) (first quoting Ranney v. Whitewater
Eng'g, 122 P.3d 214, 222 (Alaska 2005); then quoting Sampson v. State, 31 P.3d 88, 91
(Alaska 2001)).
75 Mark V. II, 375 P.3d at 59.
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----------------------- Page 29-----------------------
76
interests that justify the proposed state action." Accordingly, the State argues that
"[b]ecause Soteria-Alaska is closed, it is neither 'available' nor 'feasible' as an option
for Linda." Linda argues in response that the State reads Bigley 's feasibility requirement
too narrowly and that "Soteria-Alaska was not infeasible just because it had been
closed." Quoting language from our decision in State v. Alaska Laser Wash, Inc. , Linda
asserts that "feasible" means "[c]apable of being accomplished or brought about;
77 Using that definition, Linda concludes that "Soteria-Alaska was clearly
possible."
feasible because it had operated quite well for seven years."
Linda's argument is not persuasive, as it fails to consider for whom an
alternative is feasible. In essence, Linda's argument is that because it would be possible
for the State to establish and operate a mental health facility and program similar to
Soteria-Alaska, which was a private facility, the superior court was required to consider
Soteria-Alaska a "feasible" less restrictive alternative to hospitalization. But whether or
not it might be feasible, possible, or even advisable for the State to establish a facility and
78 with or without additional funding from the legislature,
operate such a program,
committing Linda to Soteria-Alaska or another Soteria-like setting was not an option for
76 208 P.3d 168, 185 (Alaska 2009).
77 382 P.3d 1143, 1152 (Alaska 2016) (alteration in original) (quoting
Feasible, A MERICAN HERITAGE DICTIONARY (5th ed. 2014)). Alaska Laser Wash arose
from an inverse condemnation claim by a car wash owner; in that case, we decided that
the "feasibility, rather than reasonableness," of relocating a business "is the correct
standard for analyzing whether a business owner may recover business-loss damages
when the State condemns the business owner's property." Id. The case did not involve
the question whether a less restrictive alternative existed to infringing on a persons
constitutional rights. Thus, beyond providing a dictionary definition of the word
"feasible," our decision in Alaska Laser Wash is not relevant to the discussion here.
78 We draw no conclusions and express no opinion on whether this is the case.
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----------------------- Page 30-----------------------
the superior court. The court was faced with the question what to do about Linda, whom
the jury had found to be mentally ill and a danger to others; the court needed to answer
that question with one of the options actually available to it at the time of the hearing.
79 and sending
Because Soteria-Alaska was closed, it was not "actually . . . available,"
Linda there was not feasible. The State had no duty to re-open the private facility or to
establish and operate a similar facility to meet its burden in this case.
b. The superior court did not clearly err in finding that no
less restrictive alternative existed.
Whether or not Linda's proposed alternative - Soteria-Alaska - was
feasible, the State had the burden to show by clear and convincing evidence that no less
restrictive alternative to commitment existed.80
To that end, the parties explored several
possible alternatives, including outpatient community support and assisted living
facilities. The superior court found that a viable alternative would need to "protect the
public from the harm of delusions where [Linda] might believe she's being chased by
others and cause traffic accidents" or might "react[] in a physical manner." It also found
that when Linda becomes agitated, it happens rapidly, which "could cause others to react
to her [and cause] her to take actions that pose risks to the public." The court concluded
79 Bigley, 208 P.3d at 185. The issue raised in Bigley - whether a less
intrusive alternative to psychotropic medication was available - is not identical to the
issue Linda raises here: whether a less restrictive treatment than commitment is
available. See id. at 185-86. But because both inquiries balance "the fundamental liberty
and privacy interests of the patient against the compelling state interest[s]" of protecting
disabled individuals and the public, and because both require a finding that no less
intrusive or less restrictive alternative exists, the court must perform substantially the
same feasibility analysis in each case. Id. at 185; see Mark V. II , 375 P.3d at 59.
80 Mark V. II, 375 P.3d at 58. Evidence is clear and convincing if it "produces
in the trier of fact a firm belief or conviction about the existence of a fact to be proved."
Bigley, 208 P.3d at 187 (quoting Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994)).
-30- 7328
----------------------- Page 31-----------------------
that none of the proposed less restrictive alternatives would protect the public "from the
danger to others that [Linda] currently [poses]," and that Linda needed "a facility like
API that is locked and . . . provides 24/7 care." 81
In short, we find no clear error in the superior court's finding that no
feasible less restrictive alternative to involuntarily committing Linda to API existed. We
therefore affirm the superior court's commitment order in her case.
C. The Superior Court Did Not Err In Granting API's Involuntary
Medication Petition For Naomi.
After a court has ordered an individual involuntarily committed, the State
may forcibly administer psychotropic medication in a non-crisis situation only if the
individual "is determined by a court to lack the capacity to give [or withhold] informed
consent" to the medication, and the State demonstrates "by clear and convincing
evidence that the involuntary administration of psychotropic medication is in the best
82
interests of the patient and that no less intrusive alternative treatment is available."
Naomi asks us to vacate the involuntary medication order in her case, arguing that the
superior court erred in finding that administration of medication was in her best interests
and in finding that there was no less intrusive alternative. Both claims rely on already-
rejected interpretations of applicable law.
81 Linda has not challenged the court's finding that the State's interest in
protecting the public required placing her in a locked facility with 24/7 care.
82 Bigley, 208 P.3d at 179-80 (first citing AS 47.30.836; then citing Myers v.
Alaska Psychiatric Inst. , 138 P.3d 238, 249-50 (Alaska 2006)).
-31- 7328
----------------------- Page 32-----------------------
1. The superior court did not err in its consideration of the best
interests factors.
In Myers v. Alaska Psychiatric Institute we drew upon the statutory
framework for informed consent to the administration of psychotropic medication to
articulate factors that a court must consider in making a best interests determination for
the involuntary administration of psychotropic drugs: 83
(A) an explanation of the patient's diagnosis and
prognosis, or their predominant symptoms, with and without
the medication;
(B) information about the proposed medication, its
purpose, the method of its administration, the recommended
ranges of dosages, possible side effects and benefits, ways to
treat side effects, and risks of other conditions, such as
tardive dyskinesia;
(C) a review of the patient's history, including
medicationhistory and previous sideeffectsfrommedication;
(D) an explanation of interactions with other drugs,
including over-the-counter drugs, street drugs, and alcohol;
and
(E) information about alternative treatments and their
risks, side effects, and benefits, including the risks of
nontreatment.[84]
83 138 P.3d at 252 (directing courts to apply AS 47.30.837(d)(2)'s informed
consent factors to the best interests determination).
84 Id. (quoting AS 47.30.837(d)(2)).
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----------------------- Page 33-----------------------
85
We stated that these factors are "crucial in establishing the patient's best interests," and
86
we further explained in Bigley that "their consideration by the trial court is mandatory."
87
We call these the "Myers factors."
But Myers also discussed a second set of best interests principles derived
from a Minnesota Supreme Court decision:
(1) the extent and duration of changes in behavior
patterns and mental activity effected by the treatment;
(2) the risks of adverse side effects;
(3) the experimental nature of the treatment;
(4) its acceptance by the medical community of the
state; and
(5) the extent of intrusion into the patient's body and
[88]
the pain connected with the treatment.
We refer to them as the "Minnesota factors"89 and explained in Bigley that "to the extent
they differ from the Myers factors, their consideration by Alaskan courts is favored but
not mandatory."90
Naomi concedes that thesuperior court assessedthepetitionfor involuntary
administration of medication according to the mandatory Myers factors. She argues that
the court nonetheless erred because In re Gabriel C. requires the court to apply the
85 Id. ; accord Bigley , 208 P.3d at 180.
86 208 P.3d at 180.
87 Id.
88 138 P.3d at 252 (citing Price v. Sheppard, 239 N.W.2d 905, 913 (Minn.
1976)).
89 Bigley, 208 P.3d at 180.
90 Id. at 180-81.
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----------------------- Page 34-----------------------
91
Minnesota factors to its analysis. While our opinion in that case does refer to the
92
Minnesota factors in its discussion of Myers,
it misquoted Myers as making the
Minnesota factors mandatory and does not alter the analytical framework established by
Myers and Bigley. We reiterate that the Minnesota factors offer " 'helpful' and
'sensible' "guidance in determining whetherinvoluntary medication is inapatient's best
93 The superior court,
interests, but they are not a mandatory component of the analysis.
therefore, did not err by not considering the Minnesota factors in its best interests
determination.
2. The superior court did not err in determining that there was no
less intrusive alternative to medication.
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."94
Determining whether a less intrusive alternative
exists involves both "a balancing of legal rights and interests" and a factual inquiry into
95 The legal balancing weighs "the fundamental liberty and
alternative treatments.
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
91 324 P.3d 835, 840 (Alaska 2014).
92 Id.
93 Bigley, 208 P.3d at 180-81 (quoting Myers, 138 P.3d at 252). We disavow
any erroneous statements to the contrary. Cf. In re Jacob S., 384 P.3d 758, 772 (Alaska
2016); Gabriel C., 324 P.3d at 840.
94 Bigley, 208 P.3d at 180.
95 Id. at 185.
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96
age or capacity.' " This is interwined with the factual assessment of "the feasibility and
97
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
98
interests that justify the proposed state action."
Naomi argues that our opinion in Bigley obligates the superior court to
"weigh the liberty interests of the patient and the feasibility of alternative treatments
expressly in its findings" and that it was error not to do so. She cites Bigley 's direction
that courts "must balance the fundamental liberty and privacy interests of the patient
against the compelling state interest."99 The State argues that Bigley 's directive does not
require the trial court to weigh these factors expressly, but rather reiterates the
overarching principle articulated in Myers 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
100 We agree with the State in observing that in Bigley we did not ask trial courts
exists."
to expressly weigh the patient's liberty and privacy interests against the State interest in
administering the medication. Rather, the balancing of these two interests is
encompassed in the less intrusive alternative inquiry, which requires courts to consider
both the availability of alternatives to medication and the feasibility of those
96 Id. (alteration in original) (quoting Myers, 138 P.3d at 249).
97 Id.
98 Id.
99 Id.
100 Myers, 138 P.3d at 248.
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101
alternatives. The superior court therefore did not err in not explicitly weighing
Naomi's liberty and privacy interests against the State's interest in administering
medication.102
Naomi also argues that the evidence considered by the superior court was
insufficient to establish that there was no less intrusive alternative to medication. In
determining that there existed no less intrusive alternative to forced medication, the court
found that "[w]ithout the administration of the medication at issue there would be no
improvementbutonly further decompensation as to [Naomi's]mental functioning." The
court heard testimony that Naomi's mental health had worsened during the period in
which she refused to take medication. And it credited Dr. Mack's testimony that the
medication was needed because Naomi could not benefit from less intrusive alternatives
without it: "[A]ll present paradigm psychiatric literature," Dr. Mack testified, "reflects
[that medications] are the absolute cornerstone and foundation to success." Naomi
correctly observes that "[w]hile the doctor's perspective [on this issue] is relevant, it is
not dispositive," but Naomi neither challenged Dr. Mack's perspective at the evidentiary
hearing nor proposed any alternatives to medication - feasible or otherwise. The
superior court was entitled to rely on Dr. Mack's analysis in reaching its conclusion, and
it was not clearly erroneous to find that there was no less intrusive alternative to
medication.
101 Bigley, 208 P.3d at 185.
102 Cf. Kiva O. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 408 P.3d 1181, 1190 (Alaska 2018) (holding that "Myers requires only that the
court consider the relevant factors; it does not dictate the weight the court gives them").
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V. CONCLUSION
We hold that all appeals from orders for involuntary admission for
treatment and involuntary medication categorically fall under the public interest
exception to the mootness doctrine. We therefore consider the merits of Linda's and
Naomi's appeals. We AFFIRM the superior court's commitment order in Linda's case
because the superior court did not clearly err in finding that no feasible less restrictive
alternatives to commitmentexisted. Wealso AFFIRMthecommitment orderinNaomi's
case because the superior court did not clearly err in finding that Naomi was gravely
disabled. And because we discern no error in the superior court's issuance of the
medication order in Naomi's case, we AFFIRM the involuntary medication order.
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BOLGER, Justice, concurring.
I agree with the court's ultimate conclusion that the mootness doctrine does
not apply to these cases. But I would reach this conclusion on different grounds. The
court's reliance on the public interest exception to the mootness doctrine is misplaced.
The court concludes that every commitment case involves important issues that are
capable of repetition because "an opinion considering whether a commitment order in
one case was supported by sufficient evidence will likely be useful as guidance by
1 But as we have recognized, this reasoning
analogy to future commitment proceedings."
could justify review of "every moot case in general."2
I am concerned that our review
of such routine controversies on public interest grounds will undermine the basis for the
public interest exception.
We decline to address moot controversies because "the very nature of our
judicial systemrenders it incapable of resolving abstract questions or of issuing advisory
3 If the controversy is moot, the litigants
opinions which can be of any genuine value."
have less incentive to make their best arguments.4 And regardless of the arguments'
quality, we will "lay down rules that may be of vital interest to persons" who will face
future proceedings - this is "a harsh rule" for future litigants, who will be bound by
1 Supra page 19.
2 In re Gabriel C., 324 P.3d 835, 840 (Alaska 2014).
3 Moore v. State, 553 P.2d 8, 23 n.25 (Alaska 1976), superseded on other
grounds by statute.
4 State v. Keep, 409 P.2d 321, 325 (Alaska 1965) (citing United States v.
Evans, 213 U.S. 297, 300 (1909)).
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decisions where opposing views were not vigorously presented because the controversy
was moot. 5
The collateral consequences doctrine, in contrast, "allows courts to decide
otherwise-moot cases when a judgment may carry indirect consequences in addition to
its direct force."6 Several years ago we recognized that the collateral consequences from
a person's first involuntary commitment order were sufficient to require review of an
otherwise-moot appeal.7 But we later decided that the collateral consequences exception
did not apply to a respondent who had previous commitment orders because we were
"unconvinced that the mere possibility of additional but unparticularized collateral
consequences automaticallyjustifiessubstantivereviewofeverysubsequentinvoluntary
commitment order entered against a respondent."8
I disagree with the latter proposition. There is no evidence that a previous
commitment order inoculates the respondent from the general consequences of a
subsequent commitment; I would not require any additional showing to allow review.
We do not require such a showing in the criminal law; instead we decide criminal cases
even after defendants complete their sentences because we assume that a criminal
judgment always carries collateral consequences. 9 Many other state courts similarly
5 Id. (quoting Evans, 213 U.S. at 300).
6 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)).
7 Id. at 598.
8 In re Mark V., 324 P.3d 840, 845 (Alaska 2014).
9 See State v. Carlin, 249 P.3d 752, 764 (Alaska 2011) (holding that a
deceased defendant's appeal was not moot).
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10
allow review of expired involuntary commitment orders. I would review these orders
because they have continuing collateral consequences.
10 See In re Walter R ., 850 A.2d 346, 350 (Me. 2004) (holding that collateral
consequences ofan involuntary commitmentorderprecludedapplicationofthemootness
doctrine); State v. K.J.B. , 416 P.3d 291, 298 (Or. 2018) (denying motion to dismiss
appeal because state had not shown the absence of collateral consequences); State v.
K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) (holding that the mootness doctrine did not apply
to an expired involuntary commitment order); State v. J.S. , 817 A.2d 53, 56 (Vt. 2002)
(recognizing the continuing effects of negative collateral consequences, including legal
disabilities and social stigma, from being adjudicated mentally ill and then involuntarily
hospitalized); In re Det. of H.N. , 355 P.3d 294, 298 (Wash. App. 2015) (permitting
review of expired involuntary commitment order due to likely collateral consequences).
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