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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Necessity for the Hospitalization of Joan K. (4/6/2012) sp-6660

In Re Necessity for the Hospitalization of Joan K. (4/6/2012) sp-6660

        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@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



In the Matter of the Necessity                   ) 

for the Hospitalization of                       )       Supreme Court No. S-13800 

                                                 ) 

JOAN K.                                          )       Superior Court No. 4FA-10-00080 PR 

                                                 ) 

                                                 )       O P I N I O N 

                                                 ) 

                                                 )       No. 6660 - April 6, 2012 



                Appeal   from      the  Superior    Court   of   the  State  of   Alaska, 

                Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. 



                Appearances:       Douglas Moody, Assistant Public Defender, 

                and     Quinlan     Steiner,   Public    Defender,     Anchorage,      for 

                Joan    K.   Laura     C.   Bottger   and   Laura   F.   Fox,   Assistant 

                Attorneys General, Anchorage, and John J. Burns, Attorney 

                General, Juneau, for State of Alaska. 



                Before:      Carpeneti,      Chief    Justice,   Fabe,   Winfree,     and 

                Stowers, Justices.      [Christen, Justice, not participating.] 



                WINFREE, Justice. 

                STOWERS, Justice, dissenting. 



I.      INTRODUCTION 



                An   adult   woman   diagnosed   with   a   mental   illness   appeals   her   already 



completed 30-day involuntary commitment to Alaska Psychiatric Institute (API), arguing 



the evidence did not support the superior court's findings that:                (1) she was likely to 



cause harm to   herself or others due to her mental illness; and (2) API was the least 


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

restrictive alternative placement for her.  Because our existing case law provides that an 



evidentiary-based        "weight    of  the  evidence"     challenge     to  a  completed     involuntary 



commitment is moot absent accompanying legal issues appropriate for decision under 



the   mootness   doctrine's   public   interest   exception,   we       asked    the  parties   to  submit 



supplemental briefing on mootness.  As a result, we now confront a question not directly 



raised   in   our   earlier   cases: should   our   application   of   the   mootness   doctrine   in   this 



context     accommodate        the  importance      of  collateral   consequences       arising   from   an 



involuntary commitment?   We answer that question "yes" and therefore reach the merits 



of this appeal.     On the merits, we affirm the superior court's involuntary commitment 



order. 



II.     FACTS AND PROCEEDINGS 

                 In February 2010 Joan K. disappeared from her mother's house.1                     Three 



weeks later Joan's mother received a telephone call from an unknown woman saying 



Joan was "confused or impaired" and should be picked up.                   Joan's mother found Joan 



and    brought   her    to  Fairbanks   Memorial   Hospital   (FMH).          Emergency        room    staff 



examined Joan and found her "very confused"; she also tested positive for amphetamines 



and cocaine.  Joan was admitted to the psychiatric ward, where she had been voluntarily 



hospitalized twice in November 2009. 



                 The    next   day   a  FMH     staff  physician     applied    for  an  ex   parte   order 

authorizing   Joan's   involuntary   hospitalization   for   a   mental   health   evaluation.2       The 



        1        We use a pseudonym to protect Joan's identity. 



        2        See    AS    47.30.710(b)      (authorizing      hospitalization     if  mental     health 



professional   "has   reason   to   believe   that   the   respondent   is   (1)   mentally   ill   and   that 

condition causes the respondent to be gravely disabled or to   present a likelihood of 

serious harm to self or others, and (2) is in need of care or treatment," and requiring 

application   for   an   ex   parte   order   if   no   judicial   order   has   been   obtained   under   AS 

                                                                                           (continued...) 



                                                    -2-                                              6660
 


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superior court granted the application. Dr. Victor Bell, a psychiatrist, observed Joan over 



the course of five days.   Dr. Stephen Parker, a psychologist, also observed Joan on two 



occasions.   Neither Dr. Bell nor Dr. Parker contacted Joan's family or the psychiatrist 



who had previously treated Joan for a short time. 

               The superior court held a 30-day commitment hearing on March 1, 2010.3 



The court found that Joan had bipolar disorder and that this mental illness altered her 



perception of reality, causing Joan to use drugs.         The superior court found she was 



therefore likely to cause serious harm to herself through illegal drug use.           The court 



stressed that Joan was "not being detained because she [was] a drug addict." 



               The superior court also found that as a result of her mental illness Joan was 



likely to cause harm to others, based on an incident at FMH and evidence of her unstable 



emotions.   The court said Joan might "present aggressively out in the public in front of 



lay people who may not know of [Joan's] mental disability and who may react violently 



or who may be hurt by her, may not know how to talk her down and certainly are not 



going to have drugs available [such as Valium] to ameliorate her mood as was true here." 



               The    superior  court  found   no   less  restrictive  facility  than  API  would 



adequately protect Joan and the public.       Finding Joan had refused voluntary treatment, 



the court ordered her committed to API for a period not to exceed 30 days.  Although the 



record does not indicate when API actually released Joan, 30 days from her commitment 



date was April 1, 2010. 



               Joan appeals the superior court's 30-day commitment order. 



        2      (...continued) 



47.30.700). 



       3       See AS 47.30.730-.735 (setting forth requirements for 30-day commitment 



petition and 30-day commitment hearing). 



                                               -3-                                           6660 


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

III.    STANDARD OF REVIEW 



                Mootness is a matter of judicial policy and its application is a question of 

law.4  We adopt the rule of law that is "most persuasive in light of precedent, reason, and 



policy."5   We review   fact findings in involuntary commitment proceedings for clear 



error, reversing only if we are left with a "definite and firm conviction that a mistake has 

been made."6     We review related questions of law de novo, "including whether the fact 



findings meet the statutory standards for involuntary commitment."7 



IV.     DISCUSSION 



        A.      Mootness And Collateral Consequences 



                1.     Framing the issue 



                In  Wetherhorn       v.  Alaska    Psychiatric    Institute  we    established    that 



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

commitment period has passed, subject to the public interest exception.8  Because Joan's 



post-release appeal from the superior court's commitment order is based on an assertion 



of   insufficient   evidence   and   neither   Joan   nor   the   State   discussed   mootness   in   their 



original briefs, we ordered supplemental briefing on that issue. 



        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)). 



        5       Olson v. State, 260 P.3d 1056, 1059 (Alaska 2011) (quoting Guin v. Ha, 



591 P.2d 1281, 1284 n.6 (Alaska 1979)). 



        6       In re Tracy C. , 249 P.3d at 1089 (quoting Wetherhorn v. Alaska Psychiatric 



Inst. , 156 P.3d 371, 375 (Alaska 2007)). 



        7       E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1106 (Alaska 2009) (citing 



Wetherhorn, 156 P.3d at 375). 



        8       156 P.3d at 380-81.  See also E.P., 205 P.3d at 1106-08. 



                                                 -4-                                           6660
 


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

                In her supplemental briefing, Joan suggests we should overrule Wetherhorn 



because it mistakenly focused on release from commitment, rather than vacating the 



commitment order, as the relief sought in a commitment-order appeal.  She also argues 



the public interest exception to mootness applies because "[u]nless this court reviews 



commitment orders for sufficiency of the evidence, the masters and trial court judges 



hearing these cases will have no standards by which to measure the cases before them." 



Finally,   she   argues   that   we   should   adopt   the   collateral   consequences   exception   to 



mootness in commitment-order appeals.  The State responds that Wetherhorn mandates 



dismissal of Joan's appeal as moot because: (1) the public interest exception to mootness 



does not apply; and (2) Joan has   not established any actual collateral consequences 



resulting from her commitment order. 



                We ordered oral argument on the mootness question, directing that the 



parties be prepared to discuss the authority and appropriateness of issuing a vacatur order 



to remedy possible collateral consequences arising from an otherwise-moot commitment 

order.9 



                2.	     We decline to consider overturning  Wetherhorn, but we adopt 

                        the    collateral    consequences       exception     to  mootness      in   this 

                        context. 



                        a.	     Issues not considered 



        9       See   Camreta   v.   Greene,   131   S.   Ct.   2020,   2035   (2011)   ("The   point   of 



vacatur is to protect an unreviewable decision 'from spawning any legal consequences,' 

so that no party is harmed by what we have called a 'preliminary' adjudication." (quoting 

United States v. Munsingwear, Inc., 340 U.S. 36, 40-41 (1950))); Peter A. v. State, Dep't 

of Health & Soc. Servs., Office of Children's Servs., 146 P.3d 991, 994-96 (Alaska 2006) 

(finding equity requires vacatur of challenged order when prevailing party's unilateral 

actions below resulted in issue becoming moot); City of Valdez v. Gavora, Inc., 692 P.2d 

959, 960-61 (Alaska 1984) (vacating judgment because it was moot and to prevent it 

having later legal effect). 



                                                  -5-	                                            6660
 


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

                 In   response    to   our  supplemental       briefing   order,   Joan    asserts  that   in 



Wetherhorn we "erred in focusing on the period of the commitment rather than the relief 



that   Wetherhorn       sought"    when     we   held   that  an  evidentiary-based       challenge     to  a 



completed commitment is generally moot. Joan asserts the true relief Wetherhorn sought 



was   vacating   the   "gravely   disabled"   finding;   although   not   expressly   stating   it,   she 



suggests the true relief she seeks is vacating the finding that she is a danger to herself or 



others. 



                 Our     order   for   supplemental      briefing    did   not   anticipate   questioning 



Wetherhorn's fundamental holding, nor did Joan address the standards we impose for 

overturning our precedent.10         We therefore do not consider overturning  Wetherhorn's 



holding     that   an  evidentiary-based       challenge     to  a  completed      30-day    commitment 



generally is moot. 



                 Joan also argues her evidentiary-based appeal of her 30-day commitment 



should be considered under the public interest exception to mootness. She contends that 



given her bipolar disorder, she is likely to face future commitment proceedings and the 



issues   of   this   case   are   likely   to   be   repeated. She   also   contends   we   "must   provide 



guidance to the trial courts" on the evidence necessary to meet the legal standards for: 



(1)  finding   someone   a   danger   to   self   or   others;   and   (2)   least   restrictive   treatment 



alternatives.     In   connection   with   this   latter   argument,   Joan   cursorily   asserts   in   her 



supplemental opening brief that her statutory right to appeal her commitment order is 



        10       See,   e.g., State   v.   Carlin,   249   P.3d   752,   756   (Alaska   2011)   ("We   will 



overturn one of our prior decisions only when we are '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   precedent.'   "   (quoting Pratt   & 

Whitney Can., Inc. v. Sheehan, 852 P.2d 1173, 1175-76 (Alaska 1993))). 



                                                    -6-                                               6660
 


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

"meaningless" if we choose not to review the order.11              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,   or   her   overall   public   interest 



exception argument, because we agree with Joan that we should adopt the collateral 



consequences   exception   to   mootness   in   this   context   and   consider   the   merits   of   her 

appeal.12 



                         b.      Collateral consequences exception to mootness 



                 Joan     notes    that   several    other    courts    have    applied    the    collateral 



consequences exception to mootness in the involuntary commitment context. She points 

to   social   stigma,13    adverse    employment        restrictions,14   application    in   future   legal 



proceedings,15       and   restrictions    on   the   right  to   possess    firearms16    as  recognized 



consequences from involuntary commitment orders.                    She argues we should adopt the 



         11      See AS 47.30.765 (providing that a "respondent has the right to an appeal 



from an order of involuntary commitment"). 



         12      We therefore   do not address the dissenting opinion's discussion of the 



statute. 



         13      In re Alfred H.H. , 910 N.E.2d 74, 84 (Ill. 2009) (citing In re Splett, 572 



N.E.2d 883, 885 (Ill. 1991)); State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980); State v. 

J.S. , 817 A.2d 53, 55-56 (Vt. 2002). 



         14      Alfred H.H. , 910 N.E.2d at 84. 



         15      Id. ("[A] reversal [of commitment order] could provide a basis for a motion 



in limine that would prohibit any mention of the hospitalization during the course of 

another   proceeding.");  In   re   Hatley ,   231   S.E.2d   633,   634-35   (N.C.   1977)   (stating 

evidence of prior commitment order could be used  to  attack capacity of witness, to 

impeach   witness,   to   attack   character   of   defendant,   and   in   subsequent   commitment 

proceedings). 



         16      In   re   Walter   R. ,   850   A.2d  346,   349   (Me.   2004)   (citing   18   U.S.C.    



922(g)(4) (2000)). 



                                                    -7-                                               6660
 


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

collateral consequences exception to mootness and urges us to do so without adopting 



case-specific requirements; she contends a commitment proceeding will not focus on 



future   collateral   consequences   and   the   record   available   for   appellate   review   will   be 



inadequate.  Joan also argues that when we decline to review the merits of involuntary 



commitment orders, we should vacate them rather than leaving them in place. 



                 The    State   acknowledges        there   are  collateral    consequences      from    an 



involuntary commitment order, but argues that:               (1) an exception from the general rule 



of mootness requires a case-specific analysis; and (2) Joan has not established any actual 



collateral   consequences        arising   from   her  involuntary     commitment       order.    At   oral 



argument the State also argued that certain collateral consequences from an involuntary 



commitment order, such as restrictions on the right to possess a firearm, are important, 



and   we   therefore   should   consider   an   appeal's   merits   rather   than   simply   vacate   the 



underlying commitment order. 



                 We have previously recognized that the 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."17   Both Joan and the State have articulated sound reasons to adopt the 



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



146 P.3d 991, 994-95 (Alaska 2006) (internal quotation and citation omitted). See also 

id.  (discussing   other   cases   where   court   held   issue   was   not   moot   based   on   potential 

collateral consequences); Martin v. Dieringer , 108 P.3d 234, 236 (Alaska 2005) (holding 

petition to remove personal representative of estate was not moot because findings were 

used to dismiss related civil suit based on collateral estoppel); Graham v. State, 633 P.2d 

211,   213   (Alaska   1981)   (holding   driver's   license   revocation   was   not   moot   because 

collateral consequences of revocation "may be substantial," including higher insurance 

rates   and   adverse   employment   consequences);  E.J.   v.   State ,   471   P.2d   367,   368-70 

(Alaska 1970) (holding child's claim he was improperly adjudicated as delinquent not 

moot even though adjudication was later declared void ab initio because child's records 

                                                                                           (continued...) 



                                                    -8-                                              6660
 


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

doctrine, at least to some extent, in the involuntary commitment order context. 



                 We   conclude   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.  But we do note that some 



number of prior involuntary commitment orders would likely eliminate the possibility 

of additional collateral consequences, precluding the doctrine's application.18 



                 3.	     Joan's   commitment   order   is   reviewable   under   the   collateral 

                         consequences exception to mootness. 



                 Based on our adoption of the collateral consequences exception to mootness 



in the involuntary commitment order context, we agree that Joan's commitment order, 



her first, is reviewable. 



        B.	      Merits of Joan's Appeal 



                 1.	     Legal framework 



                 To involuntarily commit someone to a treatment facility for up to 30 days, 



a court must first find, by clear and convincing evidence, that the person "is mentally ill 



and   as   a   result   is   likely   to   cause   harm   to   [self]   or   others   or   is   gravely   disabled."19 



        17       (...continued) 



were easily obtainable by others such as school authorities, social workers, judges at 

sentencing, military, and prospective employers). 



        18       See, e.g., Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 172-73 (Alaska 



2009)   (describing   "   'revolving   door'   pattern   of   arrest,   hospitalization,   release,   and 

relapse" and noting respondent had been admitted to API at least 68 times). 



        19       AS 47.30.735(c).      "Mental illness" is defined in AS 47.30.915(12) as "an 



organic, mental,   or   emotional impairment   that   has   substantial adverse   effects   on   an 

individual's ability to exercise conscious control of the individual's 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 

                                                                                           (continued...) 



                                                    -9-	                                             6660
 


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

Although       the  statute   does   not   define   "harm,"     we   have    found    AS   47.30.915(10) 



relevant,20 defining "likely to cause serious harm" as when a person: 



                         (A)   poses   a   substantial   risk   of   bodily   harm   to   that 

                 person's     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 person's self or another[.] 



                 The court must also consider whether a less restrictive alternative would 

provide   adequate   treatment.21       Alaska   Statute   47.30.915(9)   defines   "least   restrictive 



alternative" as treatment conditions that: 



                         (A) are no more harsh, hazardous, or intrusive than 

                 necessary to achieve the treatment objectives of the patient; 

                 and 



        19       (...continued) 



these conditions may also be suffering from mental illness." 



        20       E.P., 205 P.3d at 1110 (holding that because E.P. is "risking harm from [his 



own] affirmative action[, w]e 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) . . . ."). 



        21       See AS 47.30.655(2) (noting principle of modern mental health care "that 



persons be treated in the least restrictive alternative environment                consistent with their 

treatment needs"); AS 47.30.735(d) ("If [at a 30-day commitment hearing] the court 

finds that there is a viable less restrictive alternative available and that the respondent has 

been advised of and refused voluntary treatment through the alternative, the court may 

order the less restrictive alternative treatment for not more than 30 days if the program 

accepts the respondent."). 



                                                    -10-                                              6660
 


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

                        (B) involve no restrictions on physical movement nor 

                supervised residence or inpatient care except as reasonably 

                necessary for the administration of treatment or the protection 

                of the patient or others from physical injury[.] 



                As discussed below, we affirm the superior court's findings by clear and 



convincing evidence that Joan suffered from a mental illness and that as a result she 

posed a substantial risk of bodily harm to herself under AS 47.30.915(10)(A).22                     We 



therefore do not need to discuss the evidence or the superior court's finding that Joan 



posed a substantial risk of harm to others. 



                2.      Expert witness testimony 



                Dr. Bell testified Joan suffered from bipolar disorder, a serious mental 



illness   which    caused   Joan   to  suffer   mixed   emotional   states   with    manic    elements, 



depressed elements, and psychotic manifestations.               Joan told   Dr. Bell that she could 



sense   other   people's   feelings,   that   Fairbanks   was   the   center   of   the   galaxy   and   the 



separation point between heaven and hell, and that she was responsible for maintaining 



the balance between heaven and hell.   Joan also told him he was prescribing the wrong 



medicines because she needed amphetamines and OxyContin to deal with the stress of 



sensing others' thoughts.       Dr. Bell was unable to determine whether Joan had organic 



brain   damage   because   her   manic   bipolar   disorder   symptoms   prevented   a   complete 



examination.      Dr. Bell thought Joan had been abusing drugs for the three weeks she 



disappeared because her admission drug screens were positive for amphetamines and 



cocaine and because she appeared to be in a state of "lethargy or torpor," which typically 



follows prolonged stimulant abuse. 



        22      Clear and convincing evidence is evidence that produces "afirm belief or 



conviction" that the asserted fact is true.        In re Johnstone , 2 P.3d 1226, 1234 (Alaska 

2000) (quoting Buster v. Gale , 866 P.2d 837, 844 (Alaska 1994)) (emphasis added). 



                                                  -11-                                              6660 


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

                Dr. Bell was primarily concerned Joan would harm herself by further illegal 



drug use.   He thought Joan would use drugs if she left the hospital because she believed 



she   needed   amphetamines   and   OxyContin   to   manage   the   stress   associated   with   her 



delusions.    Dr. Bell testified that using illegal substances in Joan's mental state would 



make her thought process "so completely disorganized" that she would not "know what 



she was doing."       Using drugs would also cause "further de-stabilization of [Joan's] 



mental and mood state, which would aggravate her ability to conform . . . to reasonably 



safe behaviors." 



                Dr. Bell testified there was not a less restrictive facility than API that could 



meet Joan's needs.        He testified Joan needed a "very secure mental health unit" that 



would "very closely control[]" her and provide "a lot of emotional support, with careful 



control of her sleep pattern and regular appetite."   Dr. Bell thought Joan would "need a 



long period of treatment, though it could be concluded within 30 days were she to accept 



medication   reliably   and   begin   to   understand   how   drugs   and   alcohol   impact   on   the 



exacerbation of her mental illness." 



                Dr. Parker testified he had not personally diagnosed Joan, but her records 



indicated    she   had   bipolar   disorder   and  a  history   of   attention  deficit   hyperactivity 



disorder, polysubstance abuse, and alcohol abuse.  In Dr. Parker's opinion, Joan was at 



risk of causing herself bodily harm through drug use if she were not committed.  He said 



Joan's mental stability "can change very rapidly" due to her bipolar disorder.                He also 



noted    she   had  disappeared     for  three  weeks    and   used   drugs   prior   to  her  hospital 



admission. Dr. Parker testified Joan locked herself in a bathroom and threatened to blow 



herself up in November 2009. When the superior court asked what danger, if any, illegal 



drug use posed for Joan, Dr. Parker replied it would not be "good for the system" and 



was "self-destructive," but he could not say it posed "imminent danger."                   Dr. Parker 



acknowledged Joan had not expressed suicidal ideations after her February hospital 



                                                 -12-                                            6660
 


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

admittance, nor did she directly indicate any intent to harm herself or others. 



              Like Dr. Bell, Dr. Parker testified there was not a less restrictive facility 



than API that could meet Joan's needs.  Dr. Parker thought Joan needed to come out of 



her current manic episode and return to her baseline before release, otherwise she would 



continue her "uncontrolled manic behavior" and substance abuse.  Dr. Parker noted that 



the day before the hearing nurses had to medicate Joan after an incident at the nurses' 



station. He also thought outpatient treatment was not a viable option for Joan because 



outpatient psychiatry or psychology requires patients to "have some kind of insight on 



their behavior and some . . . sort of consistency of behavior."     Joan had denied to him 



that she had any mental illness or needed treatment; due to her lack of insight, Dr. Parker 



thought it "very unlikely" Joan would follow through with outpatient treatment even if 



she said she would.   Dr. Parker also testified that for a family wrap-around plan or 24- 



hour surveillance by a family member to work Joan would have to agree, and Joan 



changed her mind too frequently for such plans. 



              3.      Substantial risk of harm to self 



              Joan does not contest the superior court's finding of a mental illness.  Joan 



instead contends the superior court erred by finding that due to her mental illness she was 



likely to cause harm to herself, arguing:      (1) there was no evidence illegal drug use 



physically harmed her and she did not make affirmative statements that she would use 



illegal drugs if released; and (2) she did not manifest a current intent to carry out a plan 

to seriously harm herself.23 



       23     Cf. AS 47.30.915(10)(A), (C). 



                                            -13-                                         6660 


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

                We decided a similar issue in E.P. v. Alaska Psychiatric Institute .24               E.P. 



had a history of inhaling gasoline fumes and other substances to get high (huffing),25 



which caused organic brain damage.26            He was involuntarily committed to API several 



times   and   "maintained   that,   if   discharged   from   API,   he   [would]   likely   go   back   to 



huffing."27   We held E.P.'s organic brain damage was "a condition apart from, and more 



than, his drug addiction" and met the statutory definition of "mental illness" under AS 



47.30.915(12).28     We also held the evidence supported the multiple masters' reports and 



superior court orders, which found huffing gas damaged E.P.'s brain and E.P. would 



continue huffing gas if released.29        Thus "E.P.'s continued intent to huff gas, as a result 



of his impaired judgment and understanding, [met] the standards of AS 47.30.915(10)(A) 



and (C)."30    "E.P.'s intent to huff gas constitute[d] intent to cause himself bodily harm, 



and . . . result[ed] from his mental illness."31        Here, the superior court expressly stated 



it was not finding Joan was likely to harm herself based on drug addiction alone.  The 



superior court noted E.P., and, as we did in E.P., distinguished Joan's case "from one in 



which an addicted person with full mental capacity chooses to continue abusing harmful 



        24      205 P.3d 1101.
 



        25      Id. at 1103.
 



        26      Id. at 1104.
 



        27      Id.
 



        28
     Id. at 1109. 



        29      Id. at 1110. 



        30      Id. 



        31      Id. at 1110-11. 



                                                   -14-                                             6660
 


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

substances, no matter how unwise one might consider that choice."32                   The superior court 



stated: 



                         I find that [Joan] is suffering from a mental illness. 

                 She    has   bipolar   disorder,   which     according     to  Dr.   Bell's 

                 testimony, renders her unable to perceive reality. Her bipolar 

                 disorder is manifesting itself in psychosis right now.              She is 

                 feeling that she is experiencing the feelings of other people, 

                 both close and far away, that Fairbanks is at the center point 

                 between   heaven       and   hell   and   that   she  is   responsible   for 

                 maintaining balance between heaven and hell and keeping the 

                 universe centered. 



                         She   has   advised   Dr.   Bell   that   she   believes   that   she 

                 must   take    [amphetamines]        and   oxycontin     to  manage     the 

                 stresses that are caused by her current situation; that is, by the 

                 fact   that   she   is   responsible   for   balancing   the   equal   point 

                 between heaven and hell. . . . 



                         [Joan]   is   not   being   detained   because   she   is   a   drug 

                 addict.    She   is   taking   drugs   because   of   her   perception   of 

                 reality caused by her bipolar disorder and . . . she's being 

                 detained because her mental illness is causing her to take the 

                 drugs. 



The superior court's finding is amply supported by Dr. Bell's testimony. 



                 The superior court also heard evidence that illegal drug use would "pose 

a substantial risk of bodily harm" to Joan by exacerbating her mental illness.33  Dr. Bell 



testified if Joan used illegal drugs in her current mental state, her thought process would 



get "so completely disorganized" that she would not "know what she was doing." Illegal 



drug use would also cause "further de-stabilization of [Joan's] mental and mood state, 



which would aggravate her ability to conform . . . to reasonably safe behaviors."                         In 



        32       Id. at 1111. 



        33       See AS 47.30.915(10)(A). 



                                                    -15-                                                 6660 


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

short, Dr. Bell's testimony supported the conclusion that Joan's continued illegal drug 



use would exacerbate her mental illness and cause a self-destructive downward spiral of 



her mental and physical health. 



                Finally, the superior court heard evidence regarding Joan's "recent behavior 

causing, attempting, or threatening" harm to herself by illegal drug use.34  Although Dr. 



Bell and Dr. Parker both acknowledged Joan neither articulated a desire to harm herself 



nor did so beyond using illegal drugs, both thought she would continue using illegal 



drugs if she were not committed.          Joan's emergency room toxicology report showed 



traces   of   amphetamines   and   cocaine   in   her   system.   Dr. Bell   testified   Joan   showed 



symptoms of "lethargy or torpor" that follow stimulant abuse. Dr. Bell also testified Joan 



showed symptoms of opioid withdrawal.   The plain text of AS 47.30.915(10)(A) directs 



courts to consider "recent behavior" and does not, as Joan argues, require affirmative 

statements regarding future drug use.35         Even if affirmative statements were required, 



Joan    told  Dr.  Bell   he  was   prescribing    the  wrong    medicines     because   she   needed 

amphetamines and OxyContin.36          This is sufficient to support the superior court's finding 



that Joan was likely to continue using illegal drugs if released. 



                Based on these findings, the superior court did not err by finding clear and 



convincing evidence that, under AS 47.30.735 and AS 47.30.915(10)(A), Joan was likely 



        34      Id. 



        35      E.P. did not hold that affirmative statements were required to find someone 



likely to cause serious harm.       We relied on evidence of E.P.'s statements that he would 

return to huffing, but we did not suggest such statements were required as a matter of 

law.  See E.P., 205 P.3d at 1110-11. 



        36      Joan asserts that at the time of the hearing she "would not have felt the need 



to take illegal drugs" because she had been taking medication for several days.  No 

evidence provided at the hearing supports this contention. 



                                                 -16-                                           6660
 


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

to cause harm to herself due to her mental illness. 



                4.      Least restrictive alternative placement 



                An important principle of civil commitment in Alaska is to treat persons "in 

the least restrictive alternative environment consistent with their treatment needs."37 



                Joan argues the superior court erred in finding commitment to API would 



be the least restrictive alternative placement. Joan also contends no testimony supported 



a finding that she refused outpatient treatment or a home placement, particularly in light 



of Dr. Bell's and Dr. Parker's decisions not to contact her family or prior psychiatrist to 



ask about Joan's potential success in such alternative settings.  Joan's second argument 



reflects a misunderstanding of the superior court's findings - the court found outpatient 



treatment was not a viable option, and therefore the lack of evidence that Joan refused 



voluntary outpatient treatment is irrelevant. 



                The   superior   court   found   there   was   "[n]o   less   restrictive   facility   [that] 



would adequately protect [Joan] and the public."             The court explained: 



                API is an appropriate treatment facility, that there is no less 

                restrictive     facility   that   would     adequately     protect    the 

                respondent and the public at this time.          The reason for that 

                finding is Dr. Parker's testimony that in order for a family 

                wraparound to work or 24-hour surveillance by a family to 

                work, she would have to agree to it and he has witnessed her 

                changing her mind rapidly about what she will do and what 

                she will not do.     So, I can't trust that committing her to her 

                family's care would be a less restrictive alternative that would 

                likely work for her. 



                The record supports the superior court's finding. 



                First, Dr. Bell and Dr. Parker both testified there was no less restrictive 



facility than API that could meet Joan's needs.            Dr. Bell testified Joan needed a "very 



        37      AS 47.30.655(2). 



                                                  -17-                                               6660 


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

secure mental health unit" that would "very closely control[]" her and provide "a lot of 



emotional support, with careful control of her sleep pattern and regular appetite."               Dr. 



Bell thought Joan "need[ed] a long period of treatment, though it could be concluded 



within 30 days were she to accept medication reliably and begin to understand how drugs 



and alcohol impact on the exacerbation of her mental illness."   Dr. Parker testified Joan 



needed to come out of her current manic episode and return to her baseline before being 



released, otherwise she would continue her "uncontrolled manic behavior" and substance 



abuse. 



                Second, Dr. Parker testified outpatient psychiatry or psychology require a 



patient stable enough to have insight into one's behavior and some "sort of consistency 



of behavior."     Joan was   not   stable because she had changeable emotions and could 



change her mind "from one minute to the next."  Joan also lacked perspective regarding 



her bipolar disorder, denying she had any mental illness or needed treatment.               Because 



of Joan's lack of insight, Dr. Parker thought it "very unlikely" she would follow through 



with outpatient treatment even if she said she would. 



                The   superior   court   did   not   err   by   finding   API   was   the   least   restrictive 



placement. 



V.      CONCLUSION 



                We AFFIRM the   superior court's involuntary commitment order on its 



merits. 



                                                 -18-                                           6660
 


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

STOWERS, Justice, dissenting. 

                In  Wetherhorn       v.  Alaska    Psychiatric     Institute,1  we   considered     the 



constitutionality of Alaska's statutory provisions that govern the circumstances whereby 



the State can involuntarily commit a person with mental illness for 30 days in order to 



evaluate   and   treat   that   person. Wetherhorn  provides   the   legal   context   in   which   to 



consider Joan's case. 



                One of the orders that Wetherhorn appealed was the superior court's order 



approving   her   involuntary   commitment   for   30   days.      We   began   our   discussion   by 



observing     that  "[t]he   United   States   Supreme     Court   has  characterized     involuntary 



commitment for a mental disorder as a 'massive curtailment of liberty' that cannot be 

accomplished   without   due   process   of   law."2    We   emphasized   the   Supreme   Court's 



"repeated admonition that, given the importance of the liberty right involved, a person 



may not be involuntarily committed if they 'are dangerous to no one and can live safely 

in freedom.' "3    We explained that the Supreme Court has determined "before a person 



can be involuntarily committed, the [trial] court must find in addition to mental illness 



either:  (1) that the person presents a danger to self or others; or (2) that the person is 



'helpless to avoid the hazards of freedom either through his own efforts or with the aid 

of willing family members or friends.' "4         We stated: 



                The two findings required in addition to a finding of mental 

                illness are each aimed at different types of harm.           The first 

                finding, of "danger to self or others," is concerned with active 

                forms of harm, where the respondent has demonstrated the 



        1       156 P.3d 371 (Alaska 2007). 



        2       Id . at 375-76 (quoting Humphrey v. Cady , 405 U.S. 504, 509 (1972)). 



        3       Id . at 377 (quoting O'Connor v. Donaldson, 422 U.S. 563, 575 (1975)). 



        4       Id . at 376 (quoting O'Connor, 422 U.S. at 575 & n. 9). 



                                                 -19-                                           6660
 


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

                 affirmative   ability   or   inclination   to   inflict   harm   to   self   or 

                 another person.  The second finding 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.[5] 



                 We   then   analyzed   the   Alaska   statute   that   correlates   with   the   requisite 



findings for both types of harm.          We explained: 



                 Alaska statutes address both types of harm.               Alaska Statute 

                 47.30.735(c) permits the court to "commit the respondent to 

                 a treatment facility for not more than thirty days if it finds, by 

                 clear and convincing evidence, that the respondent is mentally 

                 ill and as a result is likely to cause harm to the respondent or 

                 others or is gravely disabled."[6] 



                 We emphasized the importance of the "clear and convincing" standard of 



                                                                                         7 

proof.   We noted that another Supreme Court case, Addington v. Texas ,  "was concerned 

with   the   standard   of   evidentiary   proof   required   in   civil   commitment   statutes."8        We 



explained that Addington held that the standard of proof: 



                 must be greater than the preponderance of evidence standard 

                 but   less   than   the   beyond   a   reasonable   doubt   standard.     As 

                 Addington noted, "[i]ncreasing the burden of proof is one way 

                 to impress the factfinder with the importance of the decision 

                 and thereby perhaps to reduce the chances that inappropriate 

                 commitments will be ordered."[9] 



         5       Id . 



         6       Id . (emphasis added). 



         7       441 U.S. 418, 426 (1979). 



         8       Wetherhorn, 156 P.3d at 378 n.26. 



         9       Id. at 378 (quoting Addington , 441 U.S. at 427, 431-33) (emphasis added). 



                                                    -20-                                                6660
 


----------------------- Page 21-----------------------

                 As I will show, in Joan's case the superior court unfortunately failed to give 



meaning   to   the   heightened   "clear   and   convincing"   standard   of   proof.         Now,   doubly 



unfortunate,   this   court   also   fails   to   meaningfully   apply   this   heightened   standard   on 



review.  In my view, the evidence adduced against Joan was conclusory and speculative, 



and   may   not   have   satisfied   even   the   lower   preponderance   of   the   evidence   standard. 



Because Joan was involuntarily committed to the Alaska Psychiatric Institute (API) by 



evidence   that   was   far   less   than   clear   and   convincing,   I   respectfully   dissent   from   the 



opinion of the court. 



                                                      I. 



                 In order to involuntarily commit Joan to API for 30 days, the superior court 



was required to find by "clear and convincing" evidence that she was "likely to cause 

harm to [herself] or others" due to her mental illness,10 meaning she posed "a substantial 



risk  of   bodily   harm"   to   herself   or   others   "as   manifested   by   recent   behavior   causing, 



attempting, or threatening harm," or by "a current intent to carry out plans of serious 

harm."11     The   superior   court   was   also   required   to   consider   whether   a   less   restrictive 



alternative was available.12       I urge the reader to carefully parse and weigh Dr. Bell's and 



Dr.  Parker's testimony in light of these statutory standards as measured by the mandated 



standard of proof: clear and convincing evidence. 



                                                     A. 



                 Clear and convincing evidence is evidence that produces "afirm belief or 



        10       AS 47.30.735(c) (emphasis added). 



        11       AS 47.30.915(10) (emphasis added). 



        12       See AS 47.30.655(2); AS 47.30.735(d). 



                                                    -21-                                               6660 


----------------------- Page 22-----------------------

conviction   about   the   existence   of   a   fact   to   be   proved."13 Here,   the   State's   experts 



Dr. Parker and Dr. Bell offered equivocal, speculative, and conclusory opinions on the 



issues of whether Joan posed a substantial threat of harm to herself or others and whether 



a less restrictive alternative was available. 



                 Dr. Parker testified that Joan was "potentially  a risk to herself" due to her 



unstable emotional state (emphasis added),  but admitted Joan had not directly expressed 



any intent to harm herself or anyone else during her present hospitalization and had not 



actually harmed herself or anyone else, other than by using drugs.                    When asked what 



danger, if any, Joan posed to herself based on the fact that she had used illegal substances, 



Dr. Parker responded, "amphetamines aren't good for the system, but . . . I can't say 



there's some imminent danger from that.  It's certainly self-destructive, but . . . plenty of 



people engage in self-destructive behavior."            (Emphasis added.) 



                 Dr. Bell testified that Joan had the "potential to cause harm" to herself and 



others due to her unstable emotions and "excessive anger," and "speculate[d] " that her 

anger was one of the reasons she had a bruise around her eye.14              (Emphasis added.) When 



asked if he was aware of any recent threats or attempts to harm herself, Dr. Bell testified 



that   Joan   had   not   expressed   any   desire   to   harm    herself   and   had   done   nothing   to 



purposefully harm herself during her present hospitalization, other than the evidence of 



her drug use.      He testified the harm from using illegal substances would be a "further 



destabilization" of Joan's mental and emotional state; he could not determine whether 



Joan had suffered any organic brain damage as a result of drug use.  Dr. Bell testified, "I 



         13      In re Johnstone , 2 P.3d 1226, 1234 (Alaska 2000) (quoting Buster v. Gale , 



 866 P.2d 837, 844 (Alaska 1994)). 



         14      When Joan was admitted to Fairbanks Memorial Hospital for her initial 



evaluation, she had a bruise around her eye.  The record does not reveal what caused the 

bruise. 



                                                   -22-                                              6660
 


----------------------- Page 23-----------------------

think if she leaves the hospital, [Joan] would go out and do drugs" in order to control the 



stress caused by her belief that she is responsible for keeping the universe centered. 



(Emphasis added.) 

                 "Likely" is defined as "an equivalent to probably ."15           "Probable" is defined 



as "likely to be or become true or real."16        "Possible" is defined as "being something that 



may or may not occur" and "being something that may or may not be true or actual."17 



"Potentially"      is  the  adverb    form    of  "potential,"    which    is  defined    as  "existing    in 

possibility"     and   "capable     of  development       into  actuality."18    Garner     explains    that 



"probable; likely; possible" "in order of decreasing strength - express gradations of the 

relative chance that something might happen."19               When an expert witness testifies that 



something is "possible" or   "potential," or that something "might" be true or "might" 



occur, or that he "thinks" it might, this indicates a lesser chance that something is true or 



likely   than   if   the   expert   testified   that   it   was   "probable"   -   "probable"   in   this   sense 



meaning more likely true than not true.  Certainly testimony that something is "possible" 



or "potential" does not establish the truth or likelihood of the thing - here specifically 



a "substantial risk" of causing harm to self or others - and certainly not by clear and 



convincing evidence, that is, a "firm belief or conviction" that the substantial risk of harm 



        15       BRYAN A. GARNER , GARNER 'S MODERN AMERICAN USAGE 514 (2009). 



        16      WEBSTER 'S NINTH NEW  COLLEGIATE DICTIONARY 937 (1987). 



        17      Id . at 918. 



        18      Id . at 921. 



        19       BRYAN A. GARNER , A DICTIONARY OF AMERICAN LEGAL USAGE 693 (2d. 



ed. 1995). 



                                                   -23-                                              6660
 


----------------------- Page 24-----------------------

existed.20 



                Based on this speculative and conclusory evidence, and on our decision in 

E.P. v. Alaska Psychiatric Institute ,21 the superior court "found that Joan had bipolar 



disorder and that Joan's mental illness altered her perception of reality.  This caused Joan 



to use drugs, and she was therefore likely to cause serious harm to herself through illegal 

drug use."22    But the court stressed that Joan was "not being detained because she [was] 



a drug addict." 



                This court also relies on E.P. in affirming the superior court's finding.  But 



E.P. is manifestly distinguishable from Joan's case in several respects - there was clear 



evidence that E.P. was addicted to huffing gas, that his addiction had caused organic brain 



damage resulting in dementia and personality disorder, and that he intended to continue 



        20      This discussion is not about semantics. Trial and appellate courts know that 



there are real and important differences in standards of proof; much turns on whether 

something is proved by the correct quantum of proof. An injured plaintiff can win a civil 

tort case by proving by a preponderance of the evidence that the defendant was negligent 

and that negligence proximately caused the plaintiff's harm.              But the State cannot win 

a murder trial by a preponderance of the evidence, or even by clear and convincing 

evidence: the State's burden is to prove that the defendant committed the crime beyond 

a reasonable doubt.  I also emphasize that I do not suggest the superior court would have 

been justified to order involuntary commitment if the State's doctor witnesses had simply 

opined that they had a "firm belief or conviction" that Joan was likely to harm herself: 

it is the evidence underlying their opinions - or rather the lack thereof - that fails the 

clear and convincing standard. The doctors' conclusory and equivocal testimony simply 

highlights the weakness of the evidence. Given the great "importance of the liberty right 

involved"   and   the   "massive   curtailment   of   liberty"   when   a   citizen   is   involuntarily 

committed to a mental institution, courts must give careful and exacting attention to the 

evidence presented by the State to ensure that it meets the high threshold of clear and 

convincing before depriving a citizen of her liberty. 



        21      205 P.3d 1101 (Alaska 2009). 



        22      Slip op. at 3. 



                                                  -24-                                            6660
 


----------------------- Page 25-----------------------

huffing gas if released.23      Unlike in E.P., there is no evidence that Joan was addicted to 



any drugs, that her drug use had caused or would likely cause substantial bodily harm 



such as organic brain damage, and she never expressed a clear intent to continue using 



drugs if released.      Of greater significance are the concessions by both doctors that Joan 



had not directly expressed any intent to harm herself or anyone else during her present 



hospitalization and had not actually harmed herself or anyone else, other than by using 



drugs.  It almost appears that the main reason underlying Joan's involuntary commitment 



was that she had abused drugs. 



                 Though   Joan's   case   is   unlike   E.P.'s   case, E.P.  reveals   several   relevant 



principles.  We cautioned in E.P. that the statutory definition of "mental illness" does not 

include "drug addiction" in and of itself24 - and by necessary implication mental illness 



also   does   not   include mere drug   use   and   abuse,   even   if   such   abuse   is   harmful.    We 



explained: 



                We distinguish [E.P.'s] 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 person's intent to harm himself 

                by    abusing    substances   results   from     drug   addiction    alone, 

                which the legislature excluded from the definition of "mental 

                 illness."  In [E.P's] case, E.P.'s decision to harm himself by 

                 abusing     substances     results   from    his   brain   damage,     and 

                therefore meets the statutory standards.[25] 



                 It is undisputed that Joan has a diagnosis of bipolar disorder, thus meeting 



the   statutory   definition   of   mental   illness.   But   there   was   no   evidence   that   Joan   was 



        23       205 P.3d at 1104-05, 1110. 



        24      Id. at 1109 (quoting AS 47.30.915(12) ("drug addiction [and] alcoholism 



do not per se constitute mental illness")). 



        25      Id . at 1111. 



                                                   -25-                                              6660
 


----------------------- Page 26-----------------------

addicted   to   drugs;   rather,   it   appears   that   she   was   simply   an   abuser   of   these   harmful 



substances.  There was also no evidence that Joan's drug use was caused by any organic 



brain    damage,     or  even    by  her   bipolar   disorder.    Joan's     case   thus   appears    to  fall 



somewhere between the case of a person "with full mental capacity" (i.e., no mental 



illness) and E.P's case where he suffered organic brain damage from huffing gas and it 



was his brain damage that caused him to continue to huff gas.                Dr. Parker's and Dr. Bell's 



testimony attempted to relate the risk of harm they argued Joan may cause to herself by 



her use of drugs to the potentially deleterious effect that these drugs could have on her 



mental condition. The superior court and this court rely on this testimony to conclude that 



Joan's case is like E.P.'s case and is not the kind of case that would be excluded because 



of the limiting definition of "mental illness" and the distinguishing example quoted above 

from E.P .26    I am unconvinced.        Joan cannot legally be involuntarily committed merely 



because she suffers from bipolar disorder. Nor can she legally be involuntarily committed 



merely because she abuses drugs, or even because her abuse of drugs would be harmful 



in the same way that drug abuse would be harmful to "an addicted person with full mental 

capacity."27   Rather, in order to legally involuntarily commit Joan, there must be clear and 



convincing evidence that as a result of her mental illness she is likely to cause harm to 

herself or others.28    For the reasons explained above, I believe the evidence is insufficient 



        26       Id . 



        27       See id. 



        28       Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 376 (Alaska 2007) 



("Alaska Statute 47.30.735(c) permits the court to 'commit the respondent to a treatment 

facility for not more than thirty days if it finds, by clear and convincing evidence, that 

the respondent is mentally ill and as a result is likely to cause harm to the respondent or 

others . . . .' " ) (quoting O'Connor v. Donaldson, 422 U.S. 563, 575 &                      n. 9 (1975)) 

(emphasis added). 



                                                   -26-                                               6660
 


----------------------- Page 27-----------------------

to support the superior court's finding by a clear and convincing standard of proof that 

Joan posed "a substantial risk of bodily harm" to herself or others.29 



                                                    B. 



                Both doctors also dismissed the possibility of a less restrictive alternative 



for Joan, even though they had not explored alternative options.  Dr. Parker and Dr. Bell 



testified that they never communicated with any of Joan's family members to see if they 



could provide a wraparound plan for her.            And even though Joan had previously been 



treated by Dr. Baker, a psychiatrist, neither doctor contacted Dr. Baker to discuss Joan's 



condition or to see if Dr. Baker could further treat Joan as an alternative to commitment 



to a psychiatric institution.  Dr. Bell testified he did not know whether Joan would be an 



appropriate candidate for voluntary treatment, but he did not believe a less restrictive 



alternative   would   meet   her   needs   because   she   was   "liable   to   erupt   with   labile   [i.e., 



changeable] emotions" and it was "possible  she could injure another person in that state 



of mind."   (Emphasis added.)   Dr. Parker testified that he believed less restrictive options 



would not work for Joan because of her unstable temperament and because she had not 



acknowledged that she had a mental illness. Notwithstanding this testimony, the superior 



court found there were no less restrictive alternatives for Joan. 



                I start with the proposition that a mentally ill person's belief that she is not 



mentally ill cannot be the measure by which a court finds that there are no less restrictive 



alternatives;    nor   can  a  doctor's    testimony    that  a  person   might   display    changeable 



emotions or "possibly" cause harm.  Of greater significance, it is illogical and insufficient 



for a doctor to opine that there are no less restrictive alternatives when the doctor has 



done nothing to evaluate        any less restrictive alternative.       The doctors were aware, or 



should have been aware, that Joan was brought to the hospital by her mother.  They were 



        29      AS 47.30.735(c); AS 47.30.915(10) (emphasis added). 



                                                  -27-                                             6660 


----------------------- Page 28-----------------------

aware that Dr. Baker had previously provided psychiatric treatment to Joan. Their failure 



to contact family and Dr. Baker or to explore any other possible alternative should have 



caused the superior court to conclude that the State, which bears the burden of proof, 



failed to prove that there were no less restrictive alternatives. 



                 In  Wetherhorn we said: 



                 [We] agree[d] with the Supreme Court of Washington 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 his best interests.  Indeed, AS 47.30.730 does require 

                 more   than   a   best   interests   determination.    For   example,  it 

                 requires   that   the   petition   for   commitment   "allege  that   the 

                 evaluation staff has considered but has not found that there 

                 are any less restrictive alternatives available" . . . . As further 

                protection, the statute directs the court to make these findings 

                 by "clear and convincing" evidence.[30] 



Under these circumstances, where the testifying doctors utterly failed to make any effort 



to   contact   Joan's    prior   treating   physician    or  her   family   to  explore    less  restrictive 



alternatives, I believe the doctors' conclusory opinions are insufficient under any standard 



of proof to support the superior court's finding that no less restrictive option was available 



for Joan. 



                 Because there was no clear and convincing evidence that Joan presented a 



substantial risk of harm to herself or others, and that she was "helpless to avoid   the 

hazards of freedom . . . with the aid of willing family members or friends"31 or her prior 



        30       Wetherhorn, 156 P.3d at 378 (quoting In re LaBelle , 728 P.2d 138, 146 



(Wash. 1986); and citing AS 47.30.730(a)(2) and (3) (emphasis added)). 



        31      Id. at 376 (quoting O'Connor, 422 U.S. at 575 & n.9). 



                                                   -28-                                               6660 


----------------------- Page 29-----------------------

treating psychiatrist - in other words, that there were no less restrictive alternatives to 



involuntary commitment - I would reverse the superior court's involuntary commitment 



order. 



                                                     II. 



                 I also disagree with this court's resolution of the mootness question.  The 



court today recognizes for the first time that the collateral consequences doctrine will 



permit an appeal of an otherwise moot order of involuntary commitment, provided that 



no   previous   commitments   have   been   ordered.          The   court   hedges   on   whether   it   will 



recognize in later cases the collateral consequences exception to the mootness doctrine 



for persons who have been involuntarily committed more than once.  While I agree that 



collateral    consequences       justify   not  applying     the  mootness      doctrine    in  involuntary 



commitment cases, I would go farther: it is my view that the supreme court must accept 



and decide on the merits every appeal of an order of involuntary commitment. 



                  The mootness doctrine is a judicially constructed doctrine to give the courts 

a means to avoid addressing cases that no longer present "live controversies."32                    But the 



Alaska Legislature has codified by statute the citizen's right to appeal a superior court 



order     for   involuntary     commitment,        and    rightly   so.    Alaska      Statute      47.30.765 



unambiguously provides that a "respondent has the right to an appeal from an order of 



involuntary commitment." The statute's language could not be any plainer. I believe that 



        32       See,    e.g.,  Green       Party    of   Alaska     v.   State,    Div.    of   Elections, 



147 P.3d 728, 732 (Alaska 2006) ("Mootness functions as a doctrine of judicial restraint; 

we generally refrain from deciding questions where events have rendered the legal issue 

moot.    A case is moot if 'it has lost its character as a present, live controversy.' "); see 

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

1167-68 (Alaska 2002) ("In most cases, mootness is found because the party raising an 

appeal   cannot   be   given   the   remedy   it   seeks   even   if   the   court   agrees   with   its   legal 

position."). 



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the statute supplants the judicially created mootness doctrine in the limited circumstance 



of involuntary commitment orders.            This is similar to the situation where the legislature 



supplants the common law with statutory law: the courts are bound to apply statutory law 

that supersedes common law.33 



                 The right to appeal is no right at all if it is merely the right to pay the filing 



fee and file an appellate brief, only to be told that your appeal is moot and the court will 



not   reach   the   merits.   Even   though   the   respondent   will   in   every   case   have   already 



completed   her   30-day   commitment   by   the   time   her   appeal   is   ripe,   and   therefore   the 



supreme court could not undo the commitment if the respondent's commitment order 



were   wrongly   issued,   I   contend   that   any   order   for   involuntary   commitment   that   is 



erroneously issued remains a "live controversy" for the respondent for the remainder of 



the respondent's life.       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, interconnected, and searchable data banks, the fact that a citizen 



has been involuntarily committed to a mental institution will 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 



        33      See,   e.g., Kodiak   Island   Borough   v.   Exxon   Corp .,   992   P.2d   757,   761 



(Alaska 1999) ("This [statutory] language evinces the legislature's intent to abrogate all 

otherwise applicable common-law doctrines . . . ."). 



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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.       I am at a loss to understand how a citizen can be ordered to be 



involuntarily committed for 30 days and be precluded from appealing this order merely 



because it is practically impossible to perfect an appeal of an order that by its terms will 



expire in 30 days. 



                Ending where I began, we - the Alaska Supreme Court - along with our 



legislature   and   the   United   States   Supreme   Court,   have   recognized   that   "involuntary 



commitment for a mental disorder [is] a 'massive curtailment of liberty' that cannot be 

accomplished without due process of law."34          I believe that this court should accept every 



appeal of an order of involuntary commitment as a matter of being faithful to the citizen's 



right to due process of law.   I also believe that, apart from considerations of due process, 



where the legislature has codified the right to appeal, we have a duty to honor and give 



real meaning to the law and to the right that it bestows. 



        34      Wetherhorn, 156 P.3d at 375-76 (quoting Humphrey v. Cady , 405 U.S. 504, 



509 (1972)). 



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