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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. E.P. v. Alaska Psychiatric Institute (4/24/2009) sp-6367
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| E.P., | ) |
| ) Supreme Court Nos. | |
| Appellant, | ) S- 12853/12934/13004 |
| ) | |
| ) Superior Court No. | |
| v. | ) 3AN-07-951 PR |
| ) | |
| ALASKA PSYCHIATRIC | ) |
| INSTITUTE, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6367 - April 24, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Douglas Moody, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. David T.
Jones, Assistant Attorney General, Anchorage,
and Talis J. Colberg, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. A person addicted to various substances, whose
substance abuse has caused organic brain damage, appeals his
three consecutive involuntary commitments to Alaska Psychiatric
Institute. We uphold his commitments, because: (1) Alaska
statutes permit involuntary commitment of a person found likely
to harm himself even if there is no reasonable belief treatment
will improve his condition; (2) an addict whose substance abuse
has caused organic damage to the frontal lobe of his brain
rendering him unable to understand the dangers of his substance
abuse, and impeding his ability to communicate, is mentally ill
under Alaskas involuntary commitment statutes; (3) where the
addict intends to return to the substance abuse that causes his
organic brain damage if released from involuntary commitment, the
addict is likely to cause harm to himself and demonstrates a
current intent to carry out plans of serious harm to himself
under Alaskas involuntary commitment statutes; and (4) the
superior courts decision to treat the addicts objections to the
masters reports as motions for reconsideration of superior court
orders was harmless error.
II. FACTS AND PROCEEDINGS
A. Introduction
A brief description of the statutory scheme governing
involuntary commitment in Alaska may assist the reader in
understanding the involved procedural history of this case.
Alaska Statute 47.30.655 discusses principles of modern mental
health care guiding the statutory scheme for involuntary
commitment, including the principle that persons who are mentally
ill but not dangerous to others be committed only if there is a
reasonable expectation of improving their mental condition.
Alaska Statute 47.30.730 allows the state to petition to
involuntarily commit for thirty days a person who is mentally ill
and as a result is likely to cause harm to self or others or is
gravely disabled. The petition must allege with respect to a
gravely disabled respondent that there is reason to believe that
the respondents mental condition could be improved by the course
of treatment sought. Under AS 47.30.740 and AS 47.30. 770, the
state may petition for an additional 90-day commitment after a 30-
day commitment, and an unlimited number of 180-day commitments
after a 90-day commitment. The same procedures apply to 90-day
and 180-day commitments as to 30-day commitments, except for a
few additional requirements.
B. Facts
E.P. has a history of alcohol abuse and inhaling
gasoline fumes and other substances to get high (huffing). These
actions have led to several commitments, both voluntary and
involuntary to the Alaska Psychiatric Institute (API). Huffing
has damaged the frontal lobe of E.P.s brain, resulting in
dementia, personality disorder, and not otherwise specified
psychosis. He has poor judgment and insight, and as a result
cannot grasp the severe health consequences of huffing. E.P. is
addicted to huffing.
E.P. stayed at API voluntarily from March until May
2007. In May 2007 API discharged E.P. to an assisted living
facility in Big Lake. Within twenty-four hours, he got drunk,
huffed gas, and became assaultive or physical. The record is
vague about this event. The police were involved in an
unspecified way, but apparently E.P. was not charged with any
crime. E.P. returned to API the next day. Throughout the
current proceedings, E.P. has maintained that, if discharged from
API, he will likely go back to huffing. The parties do not
dispute that API does not have the capability to treat or improve
his substance abuse problem: Commitment there can only prevent
him from huffing by restricting his access to gasoline and other
inhalants.
C. Proceedings
1. The 30-day commitment
In August 2007 E.P. decided he wanted to leave API.
API petitioned to commit him involuntarily for thirty days.
Standing Master Andrew Brown heard the petition on August 3,
2007. Dr. Kahnaz Khari of API testified for API, and E.P.
testified on his own behalf.
Dr. Khari testified that huffing gas has damaged E.P.s
frontal lobe, and that huffing has caused his mental health
problems. She testified that as a result of this damage, he
lacks insight and judgment and cannot understand how huffing gas
harms him. She testified that she did not expect E.P.s condition
to improve at API because API is not a substance abuse treatment
facility. She testified that E.P. should stay at API because API
restricts his access to alcohol and inhalants. She also
testified that E.P. had a history of drinking, huffing gas, and
becom[ing] assaultive when not at API. She testified that E.P.
has been a model patient during his stay at API.
E.P. testified briefly that he wanted to go back to his
family. When asked if he would go back to drinking and huffing
gas if discharged, he replied: If I relapse I will . . . . Yeah,
if I get bored I will do like I did . . . the last time. His
testimony was confused and garbled.
The standing master found E.P. mentally ill and as a
result gravely disabled. He declined to find E.P. a danger to
himself or others. E.P.s lawyer told the master that she planned
to object to his report. The standing master then issued a
written report. He found that E.Ps substance abuse had caused
organic brain damage and resulting dementia. He wrote: [E.P.]
cannot perceive and understand reality. His judgment is extremely
poor and he is unable to make rational decisions, as shown by his
continued desire to inhale toxic substances. If he is in any
type of an unsecured setting he will resume inhaling toxic
substances. He acknowledged that the only benefit API could
provide E.P. was a secured setting. The superior court judge
signed the recommendation the next day.
The day after that, E.P. filed objections to the
masters report. He argued that the statutes only allow
involuntary commitment of a gravely disabled person if there is
reason to believe treatment will improve that persons condition,
and that treatment will not improve his condition.
API responded, and agreed with E.P.s factual assertions
and legal argument. But API argued that, although involuntarily
committing E.P. for grave disability was not appropriate, the
record supported involuntarily committing E.P. on the grounds
that he was likely to harm himself or others. API wrote:
The evidence is clear that [E.P.] intends to
return to his home village and resume his
drug use. If left untreated and allowed to
resume his old habits, which is his current
plan, he will die. His sister, with whom he
intends to reside[,] has small children who
are at risk of being influenced by his
behaviors, and harmed as a result.
The superior court received the objections and response after
signing the masters report, and therefore treated the objections
as a motion for reconsideration of a superior court order. The
superior court then denied the motion [f]or the reasons stated in
[API]s Response to objections. The superior court did not
elaborate. E.P. appealed to this court.
2. The 90-day commitment
When E.P.s 30-day commitment ran out, API petitioned
for a 90-day involuntary commitment on the on the alternative
grounds that (1) E.P. was gravely disabled or (2) he was likely
to harm himself or others. Standing Master Andrew Brown held a
hearing on the petition on September 5, 2007. Dr. Khari was the
only witness. The fact findings from the 30-day commitment were
admitted as evidence. Dr. Khari testified that E.P.s condition
had not improved since the 30-day commitment hearing. But she
testified that he was a model patient, and had exhibited no
dangerous behavior. She testified that he still planned to
continue huffing gas if discharged, which would further damage
his brain. Dr. Khari also testified that E.P.s verbal
communication is limited. [A]fter . . . a couple of sentences, he
usually turns around and gives you a smile, thats something
actually not appropriate in the context of what we are talking
[about]. The master committed E.P. on grounds of grave
disability.
Again E.P.s lawyer told the master she intended to
object to his report. But again the master sent his report
immediately to the superior court, which signed it before the ten-
day period for objections had run. E.P. made similar objections
to those he made in the thirty-day proceeding. This time he
added the argument that AS 47.30.655(6) requires a reasonable
belief that treatment will improve a persons condition if the
person is gravely disabled or if the person is likely to harm
himself. He argued that he can only be involuntarily committed
without reasonable belief that treatment will improve his
condition if he is found likely to harm others.
API responded, again agreeing with E.P.s legal
conclusions.1 But API argued that the record showed E.P. was
likely to harm others. API reiterated its concerns that if E.P.
returned to his sister and resumed huffing, he would likely die.
API also worried he might influence her children, thus harming
them. API also expressed generalized concern that other people
could be harmed as a result of his choice to drink and abuse
substances.
The superior court, having already signed the masters
report before the end of the ten-day period to object, again
treated E.P.s objections as a motion for reconsideration. The
superior court denied the motion on the grounds that E.P. was
likely to harm himself because of his plan to huff gas if
discharged. The superior court held that the statute does not
require a reasonable belief that treatment will improve the
condition of a person likely to harm himself. E.P. again
appealed to this court.
3. The 180-day commitment
When E.P.s 90-day commitment ran out, API petitioned
for a 180-day commitment on the alternative grounds that (1) E.P.
was gravely disabled, or (2) he was likely to harm himself or
others. Standing Master Jonathon Lack heard the matter on
December 4, 2007. Again, Dr. Khari was the only witness. Again
Dr. Khari testified that E.P. intended to huff gas if released,
and that when intoxicated his behavior become (sic) very
assaultive, very unpredictable. She mentioned the May 2007
incident in which E.P. abused alcohol and huffing and [became]
physical and police became involved. But she also testified that
he had not shown any aggressive or self-destructive behavior
other than a continued desire to huff gas since coming to API.
She again testified that his mental condition impairs his
judgment and prevents him from appreciating the dangers of
huffing.
The standing master found E.P. to be both gravely
disabled and a danger to himself. In his written report, the
master found:
[E.P.] suffers from psychotic disorder and
persisting dementia caused by substance abuse
and manifesting itself in additional
substance abuse. He has limited cognitive
function and has no insight or judgment into
his condition and by clear and convincing
evidence the court finds that he is a risk to
himself due to his condition. He represented
to Dr. Khari that if released he would
continue to seek out materials to huff which
represents a serious irreparable threat to
his health and safety. By clear and
convincing evidence the court also finds that
[E.P.] is gravely disabled.
Again E.P.s lawyer told the master she would object,
and specifically requested that he hold his report for the full
ten-day period before sending it to the superior court. The
clerk assured her the report would be held, but in fact the
superior court signed it just three days later.
Again E.P. objected to the masters report. E.P.
reiterated his arguments made in the hearing and his previous
objections. API filed a response similar to its previous
responses.
Again the superior court treated the objections as a
motion for reconsideration. The superior court found clear and
convincing evidence that E.P. was likely to harm himself. The
evidence demonstrates his condition is far more than a substance
abuse addiction. He is mentally ill and suffers [from] mental
disorders described by Dr. Khari that manifest in his desire to
huff. The court found insufficient evidence that E.P. was
likely to harm others. The court also held that committing E.P.
on the basis of grave disability was inappropriate because there
was no reasonable belief E.P.s condition would improve with
treatment.
E.P.s lawyer then filed a motion to clarify courts
decision to treat [E.P.]s objections as a motion to reconsider.
She pointed out that, according to Alaska Probate Rule 2(f), she
should have ten days to file objections to the masters report,
and asked how she was supposed to do that if the master sent the
report directly to the superior court to sign. The court
responded that, because masters orders are immediately effective,
it makes far more sense to sign them immediately and treat
objections as a motion to reconsider. The court noted that the
time for filing a motion to reconsider is also ten days.
E.P. appealed. E.P.s appeals from his 30-day, 90-day,
and 180-day commitments have been consolidated before this court.
III. STANDARD OF REVIEW
We review fact findings in an involuntary commitment
proceeding for clear error.2 We overturn those findings only if
left with a firm conviction the standing master or superior court
made a mistake.3 We review questions of law de novo, including
whether the fact findings meet the statutory standards for
involuntary commitment.4 We also review questions of statutory
interpretation de novo.5
IV. DISCUSSION
A. Although This Case Is Now Moot, It Falls into the
Public Interest Exception to Mootness.
All three commitments from which E.P. appeals have
expired.6 Therefore, all the appeals are moot.7 Although we
generally decline to hear moot cases, we conclude that the public
interest exception to mootness applies to the questions raised
here. We consider three factors in evaluating whether the public
interest exception applies to moot claims:
(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 circumvented, and (3)
whether the issues presented are so important
to the public interest as to justify
overriding the mootness doctrine.[8]
All three factors in this case weigh in favor of
review. First, because the disputed issues in this case do not
depend heavily on E.P.s unique facts, they are capable of
repetition. When disputed issues turn on unique facts unlikely
to be repeated, we have refused to find an exception to mootness.9
But the questions E.P. raises depend on facts that may be
repeated with regard to another in a similar situation. The
matter of statutory interpretation whether a court may
involuntarily commit a person found dangerous to himself without
also finding reasonable belief that his condition will improve
with treatment10 does not depend on E.P.s particular facts.
E.P.s procedural questions11 also do not depend on his particular
facts.12
The disputed issue whether E.P. meets the statutory
requirements for involuntary commitment is capable of repetition
with regard to other people whose drug addictions have damaged
their brains. Before E.P.s recent death,13 they were not only
capable of repetition with regard to E.P. himself, but they were
repeated, because E.P. was committed three times on the same
facts.14
Also, E.P.s fact-based claims are capable of repetition
to any addict whose substance abuse causes organic brain damage.
Huffing gas and other inhalants, unfortunately, is not a rare
addiction.15 Other addictions may cause organic brain damage.
For example, long-term use of methamphetamine may cause psychotic
behavior and hallucinations.16 Thus, this commitment process may
be repeated with any drug addict whose addiction causes organic
brain damage.
The second and third factors also weigh in favor of
review. It 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. Also, the questions raised in
this appeal are important to the public interest. We have agreed
with the United States Supreme Court that an involuntary
commitment is a massive curtailment of liberty.17 The
interpretation and scope of involuntary commitment statutes
affect the power of the state to curtail the liberty of any
member of the public.
Because all three factors used to decide whether the
public interest exception to the mootness doctrine are satisfied,
we conclude that we should review E.P.s claims.
B. A Person Can Be Committed for Grave Disability Only
upon a Finding that Treatment Will Improve the Persons
Condition.
In 1981 Alaskas involuntary commitment statutes
underwent a major revision.18 Alaska Statute 47.30.655 lays out
the purposes behind the revisions. The central purpose is to
more adequately protect the legal rights of persons suffering
from mental illness.19 In addition, the following principles of
modern mental health care have guided this revision: . . . (6)
that persons who are mentally ill but not dangerous to others be
committed only if there is a reasonable expectation of improving
their mental condition.20
Relying on this statement of purpose, E.P. argues that,
unless a court finds a person likely to harm others, it may
involuntarily commit that person only if it finds that treatment
will improve the persons condition. In other words, the court
could not involuntarily commit E.P. on the grounds that he might
harm himself unless it reasonably believed that treatment would
improve his condition.
However, the substantive statutory scheme as opposed
to the statement of purpose governing involuntary commitment
does not require a reasonable belief that treatment will improve
the persons condition when the person is likely to harm himself.
Alaska Statute 47.30.730 establishes the procedure for a 30-day
commitment.21 Section (a) requires the petition to allege (1)
that the respondent is mentally ill and as a result is likely to
cause harm to self or others or is gravely disabled, and (3) with
respect to a gravely disabled respondent that there is reason to
believe that the respondents mental condition could be improved
by the course of treatment sought.22 Thus, in the case of a
mentally ill respondent, it is sufficient if the state shows that
as a result of mental illness the respondent is likely to cause
harm to self. It is only with respect to a gravely disabled
respondent that the state must show that there is reason to
believe that the respondents mental condition could be improved
by treatment referred to in this opinion with the shorthand
description, a likelihood that the respondents condition could be
improved by treatment.
We conclude that the statement of purpose found in AS
47.30.655(6) conflicts with the substantive statutes, and that
the substantive statutes control.23 The legislatures specific
requirement that the state allege that a gravely disabled persons
condition will improve indicates that no such requirement exists
in the case of mentally ill persons likely to harm themselves or
others. If the legislature intended to require that the state
allege that mentally ill persons likely to harm themselves would
be improved by treatment, it could have done so as it did for
gravely disabled people. We conclude that the state is not
required to show a likelihood that, in the case of a mentally ill
person who poses a danger to himself, treatment will improve his
condition.24
E.P. tries to draw a parallel between the mentally ill
who are gravely disabled and those who are likely to harm
themselves. Relying on language in Wetherhorn, he argues that
the legislature intended involuntary commitment of gravely
disabled people to protect them from themselves, and that this
shows that the legislature intended to require a likelihood that
treatment will improve the conditions of both gravely disabled
people and people likely to harm themselves. But Wetherhorn
distinguishes between those who are gravely disabled and those
likely to harm themselves:
The first finding, of danger to self or others, is
concerned with active forms of harm, where the
respondent has demonstrated the affirmative
ability or inclination to inflict harm to self or
another person. The second finding [of grave
disability] is concerned with a more passive
condition, whereby the respondent is so unable to
function that he or she cannot exist safely
outside an institutional framework due to an
inability to respond to the essential demands of
daily life.[25]
We conclude that the statutory requirements26 of a
showing that treatment will lead to improvement apply only to
gravely disabled persons.
Because the superior court repeatedly found no support
for the proposition that treatment at API would improve E.P.s
condition, and the evidence strongly supports this finding, the
court could not involuntarily commit E.P. on grounds of grave
disability. And in fact, none of the superior courts three
orders affirmed E.P.s commitments on grave disability grounds.
Although the standing masters all found E.P. gravely disabled,
the superior court orders affirmed E.P.s commitment on the
grounds he was dangerous to himself or others. Therefore, we
consider whether E.P. was mentally ill and as a result likely to
harm himself, or likely to harm others.
C. E.P. Is Mentally Ill as Defined by Statute.
Alaska law permits involuntary commitment only of those
who are gravely disabled or likely to harm themselves or others
as the result of mental illness.27 Thus, the state may
involuntarily commit E.P. only if he is mentally ill under the
statutes. Alaska Statute 47.30.915(12) defines mental illness
as:
[A]n organic, mental, or emotional impairment
that has substantive adverse effects on an
individuals ability to exercise conscious
control of the individuals actions or ability
to perceive reality or to reason or
understand; mental retardation, epilepsy,
drug addiction, and alcoholism do not per se
constitute mental illness, although persons
suffering from these conditions may also be
suffering from mental illness.
E.P.s organic brain damage meets the first part of the
statutory definition: as found by the superior courts, E.P.
suffers from organic mental impairments affecting his judgment,
perception of reality, and rational decision-making capabilities.
The evidence supported those findings. The question is whether
the statutes specific exception of drug addiction from the
definition of mental illness means that E.P. is not mentally ill.
We believe that it does not.
E.P.s organic brain damage is a condition apart from,
and more than, his drug addiction. While it is the result of his
addiction, it has led to greatly impaired ability to exercise
judgment, loss of perception of reality, and impaired ability to
communicate. E.P. is not simply a drug addict, he has lost the
capacity to appreciate the dangers of his addiction. Dr. Khari
testified, and the superior court found, that because of
cognitive damage, E.P. had little or no insight into the fact
that huffing gas hurts him. His continued desire to huff gas
stems not only from addiction, but also from his cognitive
inability to understand his situation.
Thus, although drug addiction originally caused E.P.s
mental deficiencies, we conclude that the superior court did not
err in finding E.P. mentally ill within the definition of the
statute.
D. E.P. Is Likely To Cause Harm to Himself.
Although Alaska law allows commitment of mentally ill
people likely to cause harm to [self] or others,28 it does not
define that term. Alaska Statute 47.30.915(10) defines likely
to cause serious harm. (Emphasis added.) Other involuntary
commitment statutes use this language. For example, AS 47.30.675
requires that, when a person voluntarily commits himself, the
treatment facility must notify him that the facility could
initiate involuntary commitment proceedings against him if the
facility determines he is mentally ill and as a result is likely
to cause serious harm to self or others or is gravely disabled.
(Emphasis added.) Presumably this notice refers to a petition
for 30-day commitment under AS 47.30.730, which does not use the
word serious. In the end, even though the definitional language
of AS 47.30.915(10) (defining likely to cause serious harm) is
not identical to the commitment language of AS 47.30.735
(establishing commitment standard of likely to cause harm to
[self] or others), we think the definitional language relevant to
interpretation of the commitment language.
Alaska Statute 47.30.915(10) defines likely to cause
serious harm as:
A person who (A) poses a substantial risk of
bodily harm to that persons self, as
manifested by recent behavior causing,
attempting, or threatening that harm; (B)
poses a substantial risk of harm to others as
manifested by recent behavior causing,
attempting, or threatening harm, and is
likely in the near future to cause physical
injury, physical abuse, or substantial
property damage to another person; or (C)
manifests a current intent to carry out plans
of serious harm to that persons self or
another.
Similarly, the commitment statutes require petitions
for 90-day and 180-day involuntary commitments to allege that a
person not gravely disabled:
has attempted to inflict or has inflicted
serious bodily harm upon [himself] or another
since [his] acceptance for evaluation, or
that [he] was committed initially as a result
of conduct in which [he] attempted or
inflicted serious bodily harm upon [himself]
or another . . . or that [he] demonstrates a
current intent to carry out plans of serious
harm to [himself] or another.[29]
While we have not yet interpreted likely to cause harm,
we have distinguished it from gravely disabled. As discussed
above, in Wetherhorn we distinguished between those who are
gravely disabled risking harm from passive failure to secure
their own basic needs and those who are likely to harm
themselves or others risking harm from affirmative action.30
We conclude that E.P.s continued intent to huff gas, as
a result of his impaired judgment and understanding, meets the
standards of AS 47.30.915(10)(A) and (C) and AS 47.30.740(a).
The multiple masters reports and superior court orders below all
found that huffing gas damages E.P.s brain and that E.P. will
return to huffing gas if released from API. The evidence
supported these findings. They all found that this intent to
huff gas is something more than an addiction, and that it stems
from his impaired ability to comprehend his condition. The
superior court affirmed E.P.s commitment on this ground at all
three commitments.31
We conclude that E.P.s intent to huff gas constitutes
intent to cause himself bodily harm, and that it results from his
mental illness.32 The superior courts finding that huffing gas
damages the brain is supported by the evidence. The finding that
E.P.s intent to huff gas if released is the result of mental
illness, rather than just an addiction, because of the damage to
his brain that prevents him from perceiving the dangers of
huffing, is likewise supported by the evidence. We distinguish
this case from one in which an addicted person with full mental
capacity chooses to continue abusing harmful substances, no
matter how unwise one might consider that choice. In such a
case, the persons intent to harm himself by abusing substances
results from drug addiction alone, which the legislature excluded
from the definition of mental illness. In this case, E.P.s
decision to harm himself by abusing substances results from his
brain damage, and therefore meets the statutory standards.
Because we find no error in involuntarily committing
E.P. on the grounds that he is mentally ill and as a result
likely to harm himself, we do not address whether E.P. may be
committed on the grounds that he is likely to harm others.
E. It Was Error To Treat the Objections to the Masters
Reports as Motions To Reconsider, but the Error Was
Harmless.
At all three hearings, E.P. told the standing master
he would object to the masters report, but at all three hearings
the superior court signed the masters reports before E.P.s ten
days to object had run. The reports then became superior court
orders. When E.P. objected, the superior court treated the
objections as motions for reconsideration of the superior courts
order. When E.P. asked the court to clarify the procedure, the
superior court instead treated the objections as motions for
reconsideration. The superior court pointed out that per Probate
Rule 2(b)(3)(C), masters orders are effective pending superior
court review. The court noted that the time frame ten days is
the same for filing both objections and motions for
reconsideration. The court also noted that per Probate Rule
2(f)(2), a party can request that the superior court stay a
masters order of commitment pending superior court review. E.P.
argues that the superior court erred when it treated his
objections to the masters reports as motions for reconsideration,
but API counters that any error was harmless. We agree with both
parties.
Probate Rule 2(f) governs objections to a masters
report.33 Rule 2(f)(1) reads:
Objections to a masters report or
recommendation must be filed within 10 days
of the date of notice of the report . . . . A
reply to the objections must be filed within
three days of service of the objections. The
superior court may permit oral argument,
order additional briefing or the taking of
further evidence, or grant a hearing de novo.
Probate Rule 2(b)(3)(C) provides that a masters order of
commitment to a treatment facility is effective pending superior
court review. Rule 2(f)(2) allows a party to request a superior
court stay a masters order pending review of the order.
Civil Rule 77(k) governs motions for reconsideration.
The time limit for filing is ten days after notice of the ruling.
Under Rule 77(k)(1), a party may only move for reconsideration on
the following grounds:
(i) The court has overlooked, misapplied or
failed to consider a statute, decision or
principle directly controlling; or (ii) The
court has overlooked or misconceived some
material fact or proposition of law; or (iii)
The court has overlooked or misconceived a
material question in the case; or (iv) The
law applied in the ruling has been
subsequently changed by court decision or
statute.
A party moving for reconsideration must specify the
grounds for reconsideration.34 Also, the party must specifically
designate that portion of the ruling, the memorandum, or the
record, or that particular authority that the moving party wants
the court to consider.35 The motion and supporting memorandum are
limited to five pages.36 The non-moving party may not respond
unless asked to do so by the court.37 No oral argument is
allowed.38 If the superior court does not rule on the motion in
thirty days, it is deemed denied.39
It was error here to treat E.P.s objections to the
masters reports as motions for reconsideration. First, a motion
for reconsideration is more limited than objections to masters
reports: A motion for reconsideration is limited to narrow
grounds and cannot exceed five pages. Second, it is a different
mechanism for a party to bring objections to the courts
attention. These two procedures give a party subject to
commitment proceedings two opportunities to object: a party can
first make a broad-based objection to the masters report on any
grounds, and then it can make a narrower objection to the
superior courts order on specified grounds. These distinct
procedures are particularly important in a case like E.P.s where
the superior court reached its conclusions on grounds different
from those relied on by the masters. A party is entitled to both
object to the masters report and to move for reconsideration from
the superior courts order, especially when the superior courts
order differs from the masters report.
We agree with E.P. that a motion for reconsideration is
a poor substitute for objections to a masters report because
motions for reconsideration are so limited. Treating objections
to masters reports as motions to reconsider restricts the moving
party to five pages and limited grounds to object when the party
should have had unlimited pages, a response from the opposing
party, an opportunity for oral argument, and, where appropriate,
a de novo hearing.
But in this case we also agree with API that the
superior courts error was harmless. The superior court did not
limit E.P. to five pages, it accepted APIs response, and even
allowed E.P. to reply to APIs response after the 180-day
commitment hearing. Furthermore, E.P. did not ask the superior
court for a de novo hearing. E.P. also had multiple opportunities
to make his arguments before the superior court because of the
three consecutive hearings. In fact, E.P. made substantially
similar arguments after each hearing. Therefore it does not
appear that E.P. had additional arguments he was unable to make
before the superior court. Thus, any error in the procedure
employed was harmless.
V. CONCLUSION
Because E.P. is likely to harm himself as a result of
his mental illness, the statutes do not require the court to find
that treatment will improve his condition in order to
involuntarily commit him. Any error in treating E.P.s objections
to the masters report as motions for reconsideration was
harmless. For these reasons, we AFFIRM E.P.s commitments.
_______________________________
1 On appeal, API asserts it erred in agreeing with E.P.s
legal conclusion about AS 47.30.655(6).
2 Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
375 (Alaska 2007).
3 Id.
4 Id.
5 Id.
6 The 30-day commitment expired in September 2007, the 90-
day commitment expired in December 2007, and the 180-day
commitment expired in June 2008. We were also recently advised
by counsel that E.P. passed away following submission of the case
for decision. On E.P.s behalf, counsel moved for decision on the
grounds of the public interest exception to mootness. API did
not oppose the motion.
7 See Wetherhorn, 156 P.3d at 380.
8 Id. at 380-81 (quoting Apik v. State, Office of Mgmt. &
Budget, 115 P.3d 532, 536 (Alaska 2005)).
9 See id. at 381 (finding no exception to mootness
doctrine where issue disputed was whether evidence presented at
committed persons hearing met clear and convincing standard for
involuntary commitment: If it were to become necessary to seek
Wetherhorns commitment again, the hearing would be based on a
different set of facts specific to different circumstances. It
is unclear how two different hearings based on different facts
and circumstances could be compared, and thus the factual
questions are not capable of repetition.).
10 See infra Part IV.B.
11 See infra Part IV.E.
12 See Wayne B. v. Alaska Psychiatric Inst., 192 P.3d 989
(Alaska 2008) (reviewing procedural issue appealed from an
expired involuntary commitment).
13 See supra note 6.
14 See AS 47.30.770, Additional 180-day commitment
(Successive 180-day commitments are permissible on the same
ground and under the same procedures as the original 180-day
commitment.).
15 See National Institute on Drug Abuse, NIDA InfoFacts:
Inhalants, http://www.drugabuse.gov/Infofacts/Inhalants.html
(2008) (last visited December 16, 2008).
16 See National Institute on Drug Abuse, Methamphetamine,
http://www.drugabuse.gov/DrugPages/Methamphetamine.html (last
visited December 16, 2008).
17 Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 317,
375 (Alaska 2007) (quoting Humphrey v. Cady, 405 U.S. 504, 509
(1972)).
18 AS 47.30.655.
19 Id.
20 AS 47.30.655(6).
21 Petitions for 90-day and 180-day commitments must meet
all the requirements of petitions for 30-day commitments. AS
47.30.740(a); AS 47.30.770(a).
22 AS 47.30.730(1) and (3) (emphasis added).
23 See Commercial Fisheries Entry Commn v. Apokedak, 680
P.2d 486, 488 n. 3 (Alaska 1984) (noting that a statutory
preamble can neither restrain nor extend the meaning of an
unambiguous statute; nor can it be used to create doubt or
uncertainty which does not otherwise exist (internal citations
omitted)).
24 See Rust v. State, 582 P.2d 134, 139 n.16 (Alaska 1978)
modified on other grounds, 584 P.2d 38 (Alaska 1978) (noting that
the state may commit a person likely to harm others under its
police powers, commit a gravely disabled person under the states
parens patriae power, and commit a person likely to harm himself
under a combination of both these state powers).
25 Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
376 (Alaska 2007) (citing In Re LaBelle, 728 P.2d 138, 144 (Wash.
1986)).
26 See AS 47.30.730(a)(3) (30-day commitment); AS
47.30.740(a) (90-day commitment); AS 47.30.770(a) (180-day
commitment).
27 AS 47.30.735(c).
28 AS 47.30.735(c).
29 AS 47.30.740(a)(1); see also AS 47.30.770(a) (requiring
petitions for 180-day commitments meet the requirements of AS
47.30.740(a)).
30 Wetherhorn, 156 P.3d at 376 (citing In Re LaBelle, 728
P.2d at 144).
31 The superior court affirmed the 30-day commitment for
the reasons in APIs brief, which included the claim that [i]f
left untreated and allowed to resume his old habits, which is his
current plan, he will die. The superior court affirmed the 90-
day and 180-day commitments on the grounds that E.P. was likely
to harm himself by continuing to huff gas if released.
32 E.P. argues in his brief that API did not present clear
and convincing evidence to meet the standard in AS
47.30.915(10)(A), which provides that a person is likely to
seriously harm himself if he poses a substantial risk of bodily
harm to that persons self, as manifested by recent behavior
causing, attempting, or threatening that harm. E.P. argues API
presented no evidence of such recent behavior. But that standard
is only one of three standards under which a person can be found
likely to seriously harm himself. The facts of E.P.s case meet
the alternative standard in AS 47.30.915(10)(C), that he
manifests a current intent to carry out plans of serious harm to
himself. The focus of Dr. Kharis testimony, and of the superior
court findings, was what E.P. intended to do in the future. E.P.
also argues that API did not present clear and convincing
evidence E.P. intended to huff gas if released from API because
E.P. testified that he might relapse. E.P. argues this indicates
that he intends to try not to huff gas, but recognizes he might
fail in that attempt. We reject this argument because Dr. Khari
repeatedly testified that E.P. intended to huff gas if released,
and the trial court determined that she was credible.
33 According to Probate Rule 1, the probate rules apply to
involuntary commitments under AS 47.30.
34 Alaska R. Civ. P. 77(k)(2).
35 Id.
36 Id.
37 Alaska R. Civ. P. 77(k)(3).
38 Alaska R. Civ. P. 77(k)(4).
39 Id.
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