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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wetherhorn v. Alaska Psychiatric Institute (09/21/2007) sp-6166

Wetherhorn v. Alaska Psychiatric Institute (09/21/2007) sp-6166, 167 P3d 701

     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,


) Supreme Court No. S- 12249
) Superior Court No.
v. ) 3AN-05-459 PR
Appellee. ) No. 6166 September 21, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Patrick J. McKay, Judge.

          Appearances:  James B. Gottstein, Law Project
          for  Psychiatric Rights, Inc., Anchorage, for
          Appellant.    Elizabeth   Russo,    Assistant
          Attorney   General,   Anchorage,   David   W.
          M rquez,   Attorney  General,   Juneau,   for

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          MATTHEWS, Justice.

          The  main  question  in this case is whether  attorneys
fees  under  Alaska  Civil  Rule  82  may  be  awarded  in  civil
commitment  proceedings.  We answer in the negative based  on  an
analogous   decision   with   respect   to   child-in-need-of-aid
          On  April  5, 2005, Alaska Psychiatric Institute  (API)
filed  a  petition under AS 47.30.730 in superior court  to  have
Roslyn Wetherhorn involuntarily committed for thirty days.1   API
filed  the petition on the grounds that Wetherhorn was likely  to
          cause harm to herself or others and that she was gravely
disabled.   The petition stated that Wetherhorn was  in  a  manic
state, was homeless, had no insight, and was non med compliant  x
3 months.
          Subsequently, API filed a petition under  AS  47.30.839
to   involuntarily  medicate  Wetherhorn  during  the  thirty-day
commitment.2  That petition stated that Wetherhorn was  incapable
of  providing  or withholding informed consent to medication  and
that she has or may have crises requiring immediate medication.
          On April 15, 2005, the superior court held a hearing on
both  petitions.  Wetherhorn was represented by the Alaska Public
Defender  Agency.  At the hearing, an API doctor  testified  that
Wetherhorn  was  bipolar, gravely disabled,  and  suffering  from
agitation, confusion, and insomnia.  API also presented  evidence
that  Wetherhorn  was  unable  to provide  or  withhold  informed
consent  to  commitment or medication.  On April  27,  2005,  the
superior court granted both petitions.3
          The  same  day  that  the superior court  granted  both
petitions,  API  filed  a petition to commit  Wetherhorn  for  an
additional  ninety days under AS 47.30.7404 and to  continue  her
forced medication during this period under AS 47.30.839.5  By the
time  API  filed  this second round of petitions  Wetherhorn  had
substituted  the Law Project for Psychiatric Rights (PsychRights)
as  her  counsel.  Upon APIs filing of petitions  for  ninety-day
commitment and continued medication, PsychRights filed  a  motion
with the superior court to have the hearing in a court room, open
to  the  public,  with  a  jury,  and  without  Wetherhorn  being
          On May 9, 2005, API released Wetherhorn and later filed
a  motion to dismiss without prejudice its petitions for  ninety-
day  commitment  and  continued  forced  medication.   Wetherhorn
responded  to  the motion, arguing that the dismissal  should  be
with  prejudice.  The superior court granted APIs motion  without
prejudice against a new petition pursuant to AS 47.30.730.
          Wetherhorn  then moved for attorneys fees  under  Civil
Rule  82, stating that she was the prevailing party in the second
commitment  proceeding because API had voluntarily dismissed  its
petitions  and that API had engaged in a wide range of  vexatious
and  bad faith conduct.  She also moved for attorneys fees  under
Alaska   Civil  Rules  11  and  95(a),  arguing  that   API   had
misrepresented  legal authority.  The superior  court  held  that
Rule  82  does not apply to civil commitment proceedings, stating
that   attorneys  fee  awards  in  such  proceedings   would   be
inconsistent with their unique character and purpose.  The  court
also  held  that  Wetherhorn was not  the  prevailing  party  for
purposes of Rule 82.  It did not address Wetherhorns request  for
attorneys fees under Rules 11 and 95(a).
          Wetherhorn  now  appeals the denial of  attorneys  fees
under Rules 11, 82, and 95(a).
          We  review the interpretation and application of  court
rules de novo.7  We review a trial courts determination whether a
litigant violated Rule 11 for abuse of discretion.8
          The  Alaska Probate Rules set forth the procedures  for
probate   proceedings,  including  civil  commitment   hearings.9
          Probate Rule 1(e) states that where the Probate Rules do not
address  a  procedural issue, courts may apply the  Alaska  Civil
Rules  unless  their application would be inconsistent  with  the
proceedings purpose and character.  One such Alaska Civil Rule is
Rule 82, which requires courts to award partial attorneys fees to
the prevailing party in litigation.
          The   superior  court  held  that  Probate  Rule   1(e)
prohibited   application   of  Rule  82   in   civil   commitment
proceedings.   It  determined that Rule 82 was inconsistent  with
the  purpose  and character of such proceedings.  Wetherhorn  now
argues   that   the   superior  court  erred   in   making   this
          We  agree with the superior court.  Civil commitment is
a unique procedure:
          Unlike  civil  or  criminal proceedings,  the
          interests   of  the  parties   to   a   civil
          commitment   proceeding  are   not   entirely
          adverse.  The states concerns are to  provide
          care  to those whose mental disorders  render
          them  unable  to care for themselves  and  to
          protect   both   the   community   and    the
          individuals    themselves   from    dangerous
          manifestations of their mental illness.[10]
          In Cooper v. State we held that Rule 82 is inapplicable
in child-in-need-of-aid (CINA) cases.11  We reasoned that applying
Rule  82  in  CINA  cases would chill the states  willingness  to
perform  a  public function  serving the welfare of children   by
burdening it with additional costs of litigation.12  We concluded
that  application  of  Rule  82 would be  inconsistent  with  the
purpose  and  character of CINA proceedings.13  Civil commitments
are  analogous to CINA cases in that they are designed to protect
the  welfare of at-risk people.  Application of Rule 82 in  civil
commitment hearings could similarly deter the state from engaging
in  needed  protective litigation.  Thus, as in Cooper,  we  hold
that  Rule  82 is inconsistent with the character and purpose  of
civil commitment proceedings.
          Wetherhorn  relies  on  Crittell  v.  Bingo14  for  the
proposition  that  Rule 82 is applicable in probate  proceedings.
In  Crittell, we applied Rule 82 in a will contest.15  We  stated
that  in probate proceedings, Civil Rule 82 governs the award  of
fees  unless a specific provision of the Probate Rules applies.16
Wetherhorn   argues  that  Crittell  stands   for   the   blanket
proposition that Rule 82 does apply to Probate Court Proceedings.
          Wetherhorns  reading of Crittell  is  too  broad.   Her
interpretation  would eliminate that part of  Probate  Rule  1(e)
that requires an inquiry as to whether the application of a Civil
Rule would be inconsistent or interfere with the unique character
of  a given probate proceeding.  Rule 82 survived this inquiry in
Crittell  but  not in Cooper because of a fundamental  difference
between  will  contests and CINA cases.  Will  contests  comprise
disputes between private litigants.  A litigant in a will contest
usually  litigates  only to increase his own  share  of  a  will,
regardless  of  the  effect this has on  society  generally.   In
          contrast, the state in a CINA case litigates to protect a childs,
and societys, interests.  This distinction between beneficent and
self-interested litigation supports the result here.
          Wetherhorn also argues that API mischaracterized  legal
authority  and  brought the civil commitment proceedings  against
her  in bad faith.  She accordingly requests that we penalize API
with  Civil  Rule 95(a) fees for its alleged violation  of  Civil
Rule 11.17  However, our review of the record convinces us that no
Rule   11   violation   occurred.   We  thus  summarily   resolve
Wetherhorns Rule 11 claim against her.
          The decision of the superior court is AFFIRMED.
     1     AS  47.30.730 provides a procedure by which a mentally
ill person may be involuntarily committed for a thirty-day period
of  treatment  and evaluation following a petition  and  hearing.
The  petition  must be signed by two mental health  professionals
and  must  allege that the respondent is mentally ill  and  as  a
result  is  likely to cause harm to self or others or is  gravely
disabled.  AS 47.30.730(a)(1).

     2     AS 47.30.839 allows a treatment or evaluation facility
to  involuntarily  medicate a mentally  ill  person  following  a
petition  and hearing.  The petition must state that  either  (1)
there  have  been  or  likely will be crises requiring  immediate
medication  or  (2)  the  patient is incapable  of  providing  or
withholding informed consent.  AS 47.30.839(a).

     3      In  a  separate  appeal  to  this  court,  Wetherhorn
challenged   the   superior  courts  grant  of  both   petitions.
Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 373 (Alaska
2007).   On  appeal  we  vacated without reversing  the  superior
courts order for thirty-day commitment and vacated its order  for
forced medication, holding that the superior court did not follow
the required procedure for ordering such medication.  Id. at 373-

     4      AS   47.30.740  provides  that  during  a  thirty-day
commitment, a person in charge of the committed person may file a
petition and request a hearing for a further ninety-day period of

     5     AS  47.30.839(h)  allows  a  treatment  or  evaluation
facility  to petition for continued involuntary medication  of  a
committed person during an additional ninety-day commitment.

     6     AS  47.30.725(e) allows the respondent in a thirty-day
civil  commitment  hearing  to  be  free  from  the  effects   of
medication  before  the  hearing.   AS  47.30.735(b)  allows  the
respondent  in  a hearing for thirty-day commitment  to  elect  a
hearing  in  a  court room, open to the public.  AS  47.30.745(a)
provides  the respondent in a ninety-day commitment hearing  with
the  same rights provided in thirty-day commitment hearings.   AS
47.30.745(c)  allows  a  respondent in  a  ninety-day  commitment
hearing to have a jury trial.

     7    Crittell v. Bingo, 83 P.3d 532, 535 n.10 (Alaska 2004).

     8     See Luedtke v. Nabors Alaska Drilling, Inc., 834  P.2d
1220,  1227 & n.4 (Alaska 1992) (holding that this court normally
reviews  the  award  of  sanctions under Rule  11  for  abuse  of
discretion  (citing  Keen v. Ruddy, 784  P.2d  653,  658  (Alaska

     9    Alaska R. Prob. P. 1(b).

     10    Goetz v. Crosson, 967 F.2d 29, 34-35 (2d Cir. 1992).

     11    638 P.2d 174, 178 (Alaska 1981).

     12     Id.  (Exposing the state to costs and attorneys  fees
when  a  child is ultimately determined not to be in need of  aid
would  significantly  chill the states  willingness  to  commence
protective proceedings for children.).

     13    Id.

     14    83 P.3d 532 (Alaska 2004).

     15    Id.

     16    Id. at 536.

     17     Civil Rule 11 provides that arguments made in  signed
pleadings  must  be warranted by existing law  or  a  good  faith
argument for the extension, modification, or reversal of existing
law.   Civil  Rule 95(a) allows a court to assess attorneys  fees
for violations of any other rule, including Rule 11.  See Luedtke
v.  Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1227 n.4 (Alaska
1992) (assuming that Rule 11 violations could give rise to awards
under Rule 95(a)).

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