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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Necessity for the Hospitalization of: Arthur A. (2/7/2020) sp-7427
Notice: This opinion is subject to correction before publication in the PACIFIC 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 No. S-17210
)
ARTHUR A.
) Superior Court No. 4FA-18-00446 PR
)
) O P I N I O N
)
) No. 7427 - February 7, 2020
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael A. MacDonald,
Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender,
and Beth Goldstein, Acting Public Defender, Anchorage, for
Arthur A. Laura E. Wolff, Assistant Attorney General,
Anchorage, and Kevin G. Clarkson, Attorney General,
Juneau, for State of Alaska.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
Arespondentappeals a30-day involuntary commitment order entered after
the superior court determined he was mentally ill, posed a risk of harm, and was gravely
disabled. He contends the court erred by refusing to allow him to represent himself at
the commitment hearing. We hold that a respondent in involuntary commitment
proceedings has at least an implied statutory right to self-representation, although that
----------------------- Page 2-----------------------
right is not absolute. If a respondent clearly and unequivocally invokes the self-
representation right, the superior court must hold a preliminary hearing and consider
factors we outlined in McCracken v. State to determine whether self-representation
1 Becausetherespondent's self-representation request in this casewas
should beallowed.
denied without adherence to the McCracken framework, we conclude that the 30-day
commitment order must be vacated.
II. FACTS AND PROCEEDINGS
A. Facts Leading To Involuntary Commitment
After attending Stanford University for undergraduate education, then-25-
year-old Arthur A.2 moved to Fairbanks in January 2018 to pursue additional education
at University of Alaska Fairbanks (UAF). Over the next few months Arthur twice went
to Fairbanks Memorial Hospital (FMH) for unspecified reasons, but he did not meet
FMH's "involuntary hold criteria" either time and was not admitted.3
In August Arthur was taken to a local correctional facility following an
"altercation" in the community. There is little admissible evidence in the record
1 518 P.2d 85 (Alaska 1974). We held in that case that the trial court should:
(1) "ascertain whether a [respondent] is capable of presenting his allegations in a rational
and coherent manner"; (2) ensure that the respondent "understands precisely what he is
giving up by declining the assistance of counsel"; (3) explain the "advantages of legal
representation" to the respondent "in some detail"; and (4) "determine that the
[respondent] is willing to conduct himself with at least a modicum of courtroom
decorum." Id. at 91-92.
2 We use a pseudonym to protect the respondent's privacy.
3 FMH's referenced "involuntary hold criteria" apparently relates to
AS 47.30.710(b), providing that a mental health professional may hospitalize a person
"on an emergency basis" if the person either is "mentally ill and that condition causes the
[person] to be gravely disabled or to present a likelihood of serious harm to self or
others" or otherwise "is in need of care or treatment."
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regarding this incident other than vague references to a disturbance at a fast-food chain
restaurant. Arthur apparently became "agitated and disorganized"; he was taken to
4
FMH, where a medical professional determined he met involuntary hold criteria. An
FMH staff member applied for an ex parte order to involuntarily hospitalize Arthur for
5
evaluation.
FMH's staff member alleged that Arthur had been diagnosed with
"schizoaffective disorder, bipolar type" and that he previously had been hospitalized in
California. She stated that Arthur was mentally ill - noting that he was "manic,
impulsive, and highly energetic" - and had disorganized thoughts. She further stated
that Arthur was gravely disabled or likely to cause serious harm to himself or others,
noting that he indicated he was president of the United States and owned multiple sports
franchises, banged on windows and tapped his fists, refused to use the telephone for
privacy reasons, could not choose his meals, removed his pants in front of staff, and
clogged the toilet with trash. She noted that FMH staff had administered three "agitation
sets" to Arthur since his arrival "to calm his irri[t]ability and mania." (Arthur's
psychiatrist later testified that "agitation sets" are medications given for "acute
dangerousness.") She stated that, taken together, these behaviors indicated "abnormal
thinking and perception . . . caus[ing] [Arthur] to become agitated and aggressive
4 Alaska Statute 47.30.705 authorizes peace officers and certain mental
health professionals to detain and deliver a person to the nearest appropriate facility for
evaluation on an emergency basis.
5 AlaskaStatute47.30.700 sets out procedures for obtaining an ex partecourt
order for the initial involuntary hospitalization of a person alleged to be mentally ill. A
mental health professional who has performed an emergency examination may
hospitalize a person in an emergency under AS 47.30.710(b) and must "apply for an ex
parte order authorizing hospitalization for evaluation" if an order has not yet been
obtained.
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(verbally)" and that he was "creating an unsafe environment for others" because he had
"los[t] touch with reality."
The superior court authorized Arthur's hospitalization for evaluation,
finding probable cause to believe he was both likely to cause serious harm to others,
based on "abnormal thinking" making him "extremely agitated and posturing," and
gravely disabled, based on his inability "to manage affairs safely."
B. 30-Day Commitment Petition And Hearing
Two days later Arthur's FMH psychiatrist and another FMH mental health
6
professional filed a 30-day involuntary commitment petition.
The psychiatrist alleged
that Arthur presented as "actively psychotic" and that Arthur believed he had invented
the internet and had one trillion dollars. The psychiatrist noted that Arthur was manic,
slept poorly, and had poor physical boundaries. She also noted that Arthur was refusing
medications and becoming "increasingly agitated." She believed that Arthur was "likely
7 The superior
to cause harm to himself[] or others," requiring commitment for 30 days.
court held a hearing on the petition the following day.8
Arthur's attorney first informed the court that Arthur wanted to represent
himself during that hearing. The court responded: "[B]ased on the petition, the [c]ourt
would find that the responde[nt] is not fit to represent himself." The court asked
6 Alaska Statute 47.30.730(a) allows specified mental health professionals
to petition for a person's 30-day involuntary commitment and establishes procedures for
the petition.
7 See AS 47.30.730(a)(1) (requiring that petition for 30-day commitment
allege respondent is mentally ill and, as a result, is (1) likely to cause harm to self or
others, or (2) gravely disabled).
8 See AS 47.30.715 (providing court shall set time for commitment hearing
to be held "within 72 hours after the respondent's arrival" at an evaluation facility);
AS 47.30.735 (establishing commitment hearing procedures).
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Arthur's attorney whether further inquiry was required; the attorney responded that she
did not believe so. Arthur then interrupted the court, stating that he "would like to [be]
evaluated by a psychiatrist to determine [his] fitness." The court responded that "based
on some testimony, [it would] explore further whether or not that [was] a reasonable
possibility."
The State then called its only witness, Arthur's treating psychiatrist. She
testified that she had spoken with Arthur about his desire to represent himself. She said
Arthur had indicated that a law degree was unnecessary and that he understood the
meaning of exculpatory and incriminating evidence.
The psychiatrist also testified more generally about Arthur's mental illness
and symptoms. She stated that Arthur met the criteria for bipolar disorder. She
discussed the likely cause of Arthur's current episode, noting that she had been told his
medications recently had changed and that he had stopped taking them, causing him to
become "destabilized." She stated that she had met with Arthur both that day and the
previous day and that he was "grandiose," "pressured," "disorganized," "aggressive,"
and "ha[d] poor insight into his condition." She cited examples of irrational thought
similar to those described in the commitment petition, including that he believed he
possessed large sums of money, invented the internet, and owned AT&T.
The psychiatrist testified that Arthur had exhibited aggressive behaviors.
She stated that "he made one effort to push through the nursing station door" and
required security staff on multiple occasions. She stated that during his first day at FMH
he had required five "agitation sets" - medications given for "acute dangerousness" -
and that "he was so agitated" medications had to be forcibly administered. Although he
hadnot required emergency medication sincethat day, sheexpected his symptoms would
worsen if untreated, and "he would either find himself again in conflict with the legal
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system in the community" or there would be "more dire consequences, such as harming
someone or someone harming him because of his behaviors."
The psychiatrist said she would feel unsafe with Arthur in the community,
"based on his symptoms, his poor insight into his symptoms, and . . . the information that
he, in the community, was in fact acting dangerously." She also said she believed Arthur
likely would have hurt someone at FMH but for the precautionary steps undertaken; she
believed that had he behaved similarly while outside FMH, "the results would have been
significantly different and more dire." And although the commitment petition was not
9 the psychiatrist testified that she did not feel Arthur could
based on grave disability,
survive safely in the community if untreated. She cited his "very haphazard way" of
eating that required staff monitoring of his food intake and her concern about "his ability
to advocate for himself appropriately."
At the end of the psychiatrist's direct testimony, the superior court stated,
"with the benefit of that direct testimony," it would "deny, finally, [Arthur's] application
to represent himself." On cross-examination the psychiatrist testified that she was not
aware of any criminal charges pending against Arthur. She stated that although Arthur
had not taken medications in over 24 hours, he still could be under their "lingering
effect." She acknowledged that Arthur had not assaulted or attempted to assault anyone
at FMH, that he ate when food was provided, and that she could refer him to medical
services outside FMH.
Arthur then testified on his own behalf. He said he could not recall the
dates or precise classes he was registered to take at UAF. But Arthur also said he lived
in a UAF dormitory near fire and police stations, had access to both public transportation
and ride-sharing services, already had purchased a meal plan that soon would become
9 See AS 47.30.915(9) (defining "gravely disabled").
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----------------------- Page 7-----------------------
active, and had winter clothing. He stated that he was on Medicaid but was unwilling
to continue seeing the therapist he previously had seen. Arthur denied attempting to
push through the nursing station door, and he stated that he had never wanted to hurt
himself or others: "I've never even hurt a fly, I've never had any thoughts of violence."
The court asked Arthur a series of questions about events leading to the
proceeding. Arthur repeatedly asserted, "I do not recall." When pressed further, Arthur
appeared confused, asking about the location where police had picked him up, whether
the fast-food chain had a restaurant in Fairbanks, whether his card had cleared if he was
there, who had claimed he had been there, whether he had said under oath that he had
been there, and why the hospital had been there.
C. Superior Court Findings
The superior court made oral findings at the end of the hearing and granted
the commitment petition. The court found that Arthur had been diagnosed with bipolar
disorder and, as a result of the disorder, that he presented a danger to both himself and
the community. The court stated that Arthur's being brought to FMH by police was
"evidence of his agitated state" and that his behaviors "resulted in public disturbances."
The court found that the five agitation sets Arthur initially had been administered were
"evidence that [his] behavior [was] dangerous and likely to endanger others, and in the
response of the others, danger to himself." The court stated that based on Arthur's
history and the hearing testimony, "there is also reason to believe that the current mental
condition is impairing [his] ability to behave safely in the community." The court issued
a written order that same day, finding that Arthur was mentally ill and, as a result, both
likely to cause harm to himself or others and gravely disabled.
This appeal followed.
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----------------------- Page 8-----------------------
III. DISCUSSION: IT WAS ERROR TO DENY ARTHUR'S SELF-
REPRESENTATION REQUEST WITHOUT FIRST CONDUCTING A
SEPARATE INQUIRY.
Arthurarguesthatinvoluntarycommitmentrespondentshaveconstitutional
and statutory rights to self-representation 10
and that the superior court erred by failing to
conduct a proper inquiry into his competence for self-representation prior to taking
evidence for the commitment petition. The State does not contest that a respondent has
therighttoself-representationin aninvoluntary commitment proceeding, insteadarguing
that the superior court did not abuse its discretion by determining Arthur was not fit to
11
represent himself.
A. Implicit Statutory Right To Self-representation
Our McCracken v. State holding extended the right to self-representation,
12
traditionally limited to criminal prosecutions. In McCracken we held that a petitioner
in a post-conviction relief proceeding has a constitutional right to self-representation,
10 We decide de novo questions of constitutional interpretation, In re
Hospitalization of Linda M. , 440 P.3d 168, 171 (Alaska 2019), adopting "the rule of law
that is most persuasive in light of precedent, reason, and policy." State v. Ketchikan
Gateway Borough , 366 P.3d 86, 90 (Alaska 2016) (quoting Se. Alaska Conservation
Council v. State , 202 P.3d 1162, 1167 (Alaska 2009)). "We apply our independent
judgment to the interpretation of Alaska statutes and will interpret statutes 'according to
reason, practicality, and common sense, taking into account the plain meaning and
purpose of the law as well as the intent of the drafters.' " In re Hospitalization of Tracy
C., 249 P.3d 1085, 1089 (Alaska 2011) (citation omitted) (quoting Native Vill. of Elim
v. State, 990 P.2d 1, 5 (Alaska 1999)).
11 "[W]e review decisions limiting or denying self-representation for abuse
of discretion." Barry H. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 404 P.3d 1231, 1235 (Alaska 2017).
12 518 P.2d 85, 91-92 (Alaska 1974).
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13
although that right is not absolute. Concluding that self-representation in a post-
conviction hearing is a fundamental right under the "retained rights" provision of article
I, section 21 of the Alaska Constitution, we held that the right to self-representation had
14 In reaching this
been "long established" and was of "fundamental importance."
determination, we looked to the value of individual autonomy and freedom of choice:
"[T]he opportunity to determine whether to present one's own case or to be represented
by appointed counsel is of paramount importance to the individual. Under some
circumstances, [the individual] may indeed be the only person who will forcefully
advance arguments in an unpopular cause."15 We thus concluded that when "liberty
itself is at stake," an individual's right to self-representation "should not lightly be
disregarded."16
Wehaveadopted McCracken 's self-representation analysisin another civil
context. In Barry H. v. State, Department of Health & Social Services, Office of
17 we considered a parent's self-representation right in a Child in
Children's Services
Need of Aid (CINA) case. But rather than looking to constitutional origins of the right
13 Id. at 88-92.
14 Id. at 91 ("[T]he enumeration of rights in this constitution shall not impair
or deny others retained by the people." (quoting Alaska Const. art. 1 § 21)).
15 Id.
16 Id. One year after McCracken the United States Supreme Court held in
Faretta v. California, 422 U.S. 806, 818-21 (1975), that the Sixth Amendment to the
United States Constitution grants criminal defendants, through implication, a
constitutional right to self-representation.
17 404 P.3d 1231 (Alaska 2017).
-9- 7427
----------------------- Page 10-----------------------
18
to self-representation, as we did in McCracken, we looked to the Alaska CINA Rules
themselves: Rule 12(c) provides that a trial court "shall accept a valid waiver of the right
to counsel by any party if the court determines that the party understands the benefits of
19 We held that the CINA Rules
counsel and knowingly waives those benefits."
incorporate the McCracken standard into CINA proceedings.20
We have not yet directly addressed whether the right to self-representation
extends to involuntary commitment proceedings. But a respondent's right to self-
representation is implicit in the statutory framework. Alaska Statute 47.30.725,
enumeratingarespondent's rights oncedetainedfor an involuntarycommitment hearing,
recognizes a respondent's right to an attorney.21 Subsection (d) specifically provides:
"The respondent has the right to be represented by an attorney, to present evidence, and
to cross-examine witnesses who testify against the respondent at the hearing." The
enumerated rights in AS 47.30.725(d) are the respondent's rights, not obligations forced
on the respondent. And nothing in the statutory language suggests that the respondent's
rights to present evidence and cross-examine witnesses exist only if the respondent is
represented by counsel. Subsection (d) instead provides a respondent defense rights
which the respondent may choose to exercise through representation by counsel.22
Moreover, AS 47.30.725(f) may contemplate an involuntary commitment
respondent's self-representation: "A respondent, if represented by counsel, may waive,
18 518 P.2d at 91.
19 Id. at 1234-35 (quoting CINA Rule 12(c) ("Waiver of Right to Counsel")).
20 Id.
21 See AS 47.30.725(d).
22 Id.
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orally or in writing, the 72-hour time limit on the 30-day commitment hearing . . . ."
(Emphasis added.) The phrase "if represented by counsel" further implies that
involuntary commitment respondents, in at least some circumstances, will not be
represented by counsel at all stages of a proceeding and thus will be self-represented.
In a recent unpublished decision, In re Hospitalization of Brandi A. , we
23
recognized that an involuntary commitment respondent represented herself on appeal.
In a sua sponte order prior to appellate oral argument, we remanded the case for the
superior court "to hold a hearing to determine whether [the respondent] wants appointed
counsel to represent her on appeal, and, if not, whether she should be permitted to
represent herself on appeal."24 We directed the superior court to consider the standards
discussed in McCracken and Barry H.25 The superior court held a representation hearing
and determined that the respondent could represent herself, and we allowed her to do so
in the appeal.26
Accordingly, we conclude the involuntary commitment statutes reflect that
respondents have the right to self-representation, although that right is not absolute. We
therefore do not reach Arthur's constitutional argument on this issue.
B. The McCracken Standard In Involuntary Commitment Hearings
McCracken prescribes a three-step inquiry to determine whether a post-
conviction relief petitioner may be self-represented. First, the trial court must "ascertain
whether [the petitioner] is capable of presenting . . . allegations in a rational and coherent
23 No. S-16750, 2019 WL 324926, at *1 (Alaska Jan. 23, 2019).
24 In re Brandi A. , No. S-16750 (Alaska Supreme Court Order, June 7, 2018).
25 Id.
26 In re Brandi A. , No. S-16750, 2019 WL 324926, at *1; (Alaska Supreme
Court Order June 25, 2018).
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----------------------- Page 12-----------------------
27
manner." Second, the court must "satisfy [itself] that the [petitioner] understands
28
precisely what [the petitioner] is giving up by declining the assistance of counsel."
This step requires "demonstrat[ing] that [the petitioner] understands the benefits of
counsel and knowingly waives the same"; if the court is not "completely satisfied that
the [petitioner] is capable of pro se representation," it is within the court's "sound
discretion to insist that the [petitioner] accept consultative assistance by appointed
counsel."29 Finally, the court must "determine that the [petitioner] is willing to [present
evidence and argument] . . . with at least a modicum of courtroom decorum."30 We
subsequently have concluded that these inquiries must "appear affirmatively on the
record,"31 but a negative finding under any one of the three inquiries is sufficient to
justify denying the self-representation request.32
The State argues that it would be inefficient and impractical to require a
self-representation competency hearing before beginning an involuntary commitment
hearing. But this argument ignores that the two inquiries have different legal standards,
33 If at the involuntary commitment hearing the
requiring two separate determinations.
27 McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).
28 Id. at 91-92.
29 Id.
30 Id. at 92.
31 O'Dell v. Municipality of Anchorage , 576 P.2d 104, 107-08 (Alaska 1978).
32 Jensen D. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 424 P.3d 385, 389 (Alaska 2018).
33 See AS 47.30.735(c) (providing court must find by clear and convincing
evidence that respondent is mentally ill and, as a result, likely to cause harm to self or
(continued...)
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----------------------- Page 13-----------------------
respondent invokes theright to self-representation, the superior court should dedicatethe
first part of the hearing to determining the respondent's competency for self-
representation under McCracken 's framework. Although the court is not necessarily
prohibited from reviewing the involuntary commitment petition for this purpose, the
court should engage in a thorough colloquy with the respondent before making a
34 The court should ensure that the respondent's waiver of counsel is
determination.
knowing and intelligent, meaning that the respondent understands the right to counsel,
the important advantages of having counsel, and the dangers of declining counsel.35 A
bifurcated process, taking place before substantive commitment hearing testimony, may
help address the "conceptual difficulty that can arise when a court must consider both
whether a respondent is competent to waive counsel and . . . whether the respondent's
36 Atwo-fold process would protect
mental condition necessitates involuntarytreatment."
33 (...continued)
others or is g ravely disabled before court can order involuntary 30-day commitment);
McCracken, 518 P.2d at 91-92 (establishing self-representation standard with lower
burden of proof).
34 See 53 AM. JUR. 2D Mentally Impaired Persons § 35 (2019) (footnotes
omitted):
In a mental health proceeding where the respondent w ishes
to represent himself, the trial court should engage in a
colloquy with the respondent in order to determine whether
the waiver of the right to counsel is knowing, intelligent, and
voluntary and must ensure that the respondent is advised of
the dangers and disadvantages of self-representation.
35 See Massey v. State, 435 P.3d 1007, 1010 (Alaska App. 2018) (explaining
court's necessary assurances before finding defendant knowingly and intelligently
waived counsel); see also McCracken, 518 P.2d at 91-92.
36 In re C.S., 713 N.W.2d 542, 546 (N.D. 2006) (discussing the "logical
(continued...)
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----------------------- Page 14-----------------------
against erroneously presuming incompetence "simply due to the fact that mental health
proceedings are being undertaken against the respondent." 37
The current statutory scheme for involuntary administration of medication
provides some guidance. Alaska Statute 47.30.836 recognizes that a respondent who is
involuntarily committed retains the right to consent to, or decline, the administration of
psychotropic medication. If the treating facility has reason to believe the respondent is
incapableofmaking an informed consent decision, it may fileapetitionfor court-ordered
administration of psychotropic medication.38 The superior court must hold a separate
hearing and conduct a separate inquiry into the respondent's capacity to give informed
consent.39 The court also must appoint a "visitor" to assist the court and conduct a
capacity assessment.40 If the court finds the respondent is competent to provide informed
consent and the respondent does not consent to receiving psychotropic medication, the
court is required by statute to order the facility "to honor the patient's decision about the
41 The facility may overcome the respondent's decision
use of psychotropic medication."
36 (...continued)
tension" between finding of competence to waive counsel and ultimate finding of mental
illness); see also S.Y. v. Eau Claire Cty., 469 N.W.2d 836, 842 (Wis. 1991).
37 In re C.S., 713 N.W.2d at 546.
38 AS 47.30.839.
39 Id. ; Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 241-44 (Alaska 2006).
40 AS 47.30.839(d).
41 AS 47.30.839(f).
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----------------------- Page 15-----------------------
to not receive psychotropic medication only with a court order that includes specific
findings.42
McCracken sets out the required standard for determining whether a
respondent is capable of self-representation, but the superior court may expand its
McCracken analysis in the involuntary commitment context by drawing guidance from
the foregoing procedure for involuntary administration of psychotropic medication. As
the United States Supreme Court has noted: "Mental illness itself is not a unitary
concept. It varies in degree. It can vary over time. It interferes with an individual's
functioning at different times in different ways."43 And although we recognize the
logistical obstacles courts may face when a respondent invokes the right to self-
representation, we have faith that the courts are equipped to apply the McCracken
analysis in involuntary commitment hearings.
Cases applying the McCracken framework in other contexts also
demonstrate that denying a respondent's self-representation request should be based on
44
the superior court's interactions with the respondent, not solely on external sources.
42 The court first must find the respondent presently is incompetent to provide
informed consent and was incompetent at the time of any previously expressed wishes
not to be medicated. AS 47.30.839(g). The court then must make an independent
judicial determination that administration of psychotropic medication to a non-
consenting mentally ill patient in a non-emergency setting is (1) the least intrusive
treatment means available, and (2) in the patient's best interests. Id. ; Meyers, 138 P.3d
at 250, 254.
43 Indiana v. Edwards, 554 U.S. 164, 175 (2008).
44 See, e.g., Barry H. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 404 P.3d 1231, 1235-36 (Alaska 2017) (affirming denial of self-
representationrequestafterfatherbehavedinappropriately at earlier hearings, continually
challenged court's jurisdiction at termination trial, covertly radio-broadcast confidential
(continued...)
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----------------------- Page 16-----------------------
Althoughmedical opinionsmay clarify therespondent's capacity for self-representation,
the court cannot scrupulously apply the McCracken factors without engaging directly
with the respondent. A court must make a realistic determination about a respondent's
mental capacity to participate in a commitment hearing without the aid of counsel, taking
into consideration the respondent's age, education, mental condition, the complexity of
the proceeding, and the totality of the record before the court.
C. Denial Of Arthur's Self-representation Request
Arthur argues that the superior court erred by failing to apply the
McCracken analysis when denying him self-representation. Arthur argues the record
shows he "clearly and unequivocally" sought to represent himself, which the State does
not dispute. Arthur contends that, once he requested to represent himself, the court was
required to ask him questions and advise him before it granted or denied his request,
rather than looking only to the State's petition and its direct testimony. Differentiating
between what a court must do when granting a request for self-representation versus
what it must do when denying that request, the State responds that the court properly
found Arthur failed to meet McCracken 's first requirement - being capable of
45 The State contends that
presenting his allegations in a "rational and coherent manner."
it was not an abuse of discretion to make this finding based on the evidence before the
court.
44 (...continued)
proceedings while he was participating telephonically, and argued to such extent that
court threatened to disconnect his telephonic participation); Jensen D. v. State, Dep't of
Health & Soc. Servs., Office of Children's Servs., 424 P.3d 385, 389-90 (Alaska 2018)
(affirming self-representation request denial when mother interrupted court, interrupted
other witnesses' testimony, and appeared under influence of drugs or alcohol).
45 See McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).
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----------------------- Page 17-----------------------
The superior court's findings regarding Arthur's capability to represent
himself are nearly non-existent. In the hearing's first few minutes, Arthur's attorney
informed the court of the self-representation request. The court denied the request
immediately, stating: "[B]ased on the petition, theCourt would find that theresponde[nt]
is not fit to represent himself." The court then asked Arthur's attorney if further inquiry
was required, and the attorney responded in the negative before Arthur interrupted and
asked for a psychiatric evaluation to determine his fitness. 46 The court stated it would
"at least hear the [S]tate's direct . . . testimony" before it would "explore further whether
or not that is a reasonable possibility." After the psychiatrist's direct testimony, the court
summarily stated: "And with the benefit of that direct testimony, the [c]ourt will deny,
finally, [Arthur's] application to represent himself . . . ."
Although the superior court apparently considered the request throughout
the psychiatrist's direct testimony, relying solely on the petition certainly would have
required automatic reversal. Every involuntary commitment petition alleges mental
illness; if a court determines self-representation competence based solely on a petition,
the self-representation right is nullified and subsumed within the involuntary
commitment determination. And despite the court's reliance on the psychiatrist's direct
testimony in this case, the court did not wait for cross-examination, engage in any
46 The State contends: "To the extent Arthur now objects to the court's
relying on the commitment petition in making its preliminary determination that he was
unfit to represent himself, the plain error standard applies because neither [his] attorney
nor [he] objected at that time." This statement is incorrect; although Arthur's attorney
indicated that no "further inquiry" was required at that point, Arthur immediately
interrupted the court to ask for a psychiatric evaluation for the specific purpose of
determining his fitness for self-representation, indicating that the petition alone was
insufficient. Because of the nature of Arthur's appeal - arguing that he should have
been allowed to represent himself - it would be unfair to view his attorney's statement
as waiving his representational right, particularly given that Arthur himself objected.
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colloquy, or apply any McCracken factors before denying Arthur's request to represent
himself. Nothing indicates that Arthur was unruly or that he misunderstood the
proceedings during the psychiatrist's direct testimony. And the court's findings did not
explain why it denied Arthur's request.
The State argues that the superior court implicitly found Arthur did not
meet McCracken 's first factor - being "capable of presenting his allegations in a
47 - such that the court was not required to do anything
rational and coherent manner"
more. The State supports its argument by drawing on the psychiatrist's testimony that
Arthur was actively manic and experiencing delusions. Although Arthur's mental state
certainly was relevant, this is insufficient evidence for concluding he was incapable of
"presenting his allegations in a rational and coherent manner."48 One can be mentally
ill and still argue capably. Without factual findings about precisely why Arthur was unfit
to represent himself, a finding that he was mentally ill is insufficient to support denying
his request to represent himself.
The State supports its argument by stating that Arthur's "testimony further
validated the court's decision." But Arthur's testimony was irrelevant; the court already
had made its final decision by that point. Even if Arthur's later testimony may have
evidenced an inability to present his thoughts rationally and coherently, it was error to
not make findings or engage in a discussion with him, as McCracken requires, before
making that determination.
The State argues that any error in denying Arthur's self-representation
request was harmless and that even if the court followed proper procedures, the result
would have been the same. But as the United States Supreme Court has held in the
47 McCracken, 518 P.2d at 91.
48 See id.
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criminal context: "[T]he right of self-representation is a right that when exercised
usually increases the likelihood of a trial outcome unfavorable to the defendant, [and] its
denial is not amenable to 'harmless error' analysis. The right is either respected or
49 Failure to conduct a self-representation
denied; its deprivation cannot be harmless."
inquiry in this case was more than a mere technical violation. Because a respondent's
invocation of the right to self-representation affects the involuntary commitment
hearing's framework, failure to conduct a self-representation inquiry after a respondent
clearly and unequivocallyinvokes theright is effectively astructural defect not amenable
to harmless error analysis.50 The 30-day commitment order must be vacated.
IV. CONCLUSION
Refusal to hold a separate McCracken inquiry on Arthur's self-
representation request was legal error requiring that the 30-day involuntary commitment
order be VACATED.
49 McKaskle v. Wiggins , 465 U.S. 168, 177 n.8 (1984).
50 See Massey v. State , 435 P.3d 1007, 1011 (Alaska App. 2018) (citing
McKaskle, 465 U.S. at 177 n.8, and holding that "the superior court's refusal to hold a
hearing on[thecriminal defendant's]request for self-representationwasastructural error
that requires reversal of his conviction"); see also United States v. Gonzalez-Lopez, 548
U.S. 140, 148-49 (2006) (noting that "structural defects" "defy analysis by 'harmless-
error' standards" because they "affec[t] the framework within which the trial proceeds"
rather than constituting "simply an error in the trial process itself" (quoting Arizona v.
Fulminante, 499 U.S. 279, 309-10 (1991))).
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