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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 Daniel G. (2/7/2014) sp-6862

In Re Necessity for the Hospitalization of Daniel G. (2/7/2014) sp-6862

         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-15100  

                                                         )  

DANIEL G.                                                )        Superior Court No. 3AN-13-00454 PR  

                                                         )  

                                                         )        O P I N I O N  

                                                         )  

                                                         )        No. 6862 - February 7, 2014  

                                                         )  



                   Appeal from the Superior Court of the State of Alaska, Third  

                                                                  

                   Judicial District, Anchorage, Frank A. Pfiffner, Judge.  



                   Appearances:  James B. Gottstein, Law Project for Psychiatric  

                   Rights, Inc., Anchorage, for Appellant Daniel G.  Laura Fox,  

                                                                           

                   Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                                                                                        

                   Geraghty, Attorney General, Juneau, for Appellee State of  

                   Alaska.  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, and Bolger,  

                   Justices. [Maassen, Justice, not participating.]  



                   FABE, Chief Justice.  



I.       INTRODUCTION  



                   Daniel  G.  appeals  an  ex  parte  order  authorizing  a  72-hour  psychiatric  



                                                                    1  

evaluation issued after his emergency detention.   The evaluation personnel determined  

                                                                                              



          1        We use a pseudonym to protect Daniel's privacy.  


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

                                                

that Daniel did not meet the statutory criteria for involuntary commitment, and he was  



                                                                                                                                                     

released before the expiration of the 72-hour evaluation period.   He argues that  the  



                                                                                                                       

evaluation order violated his constitutional right to due process because it was issued on  



                                                                                                                

an ex parte basis, without notice and a hearing, while he was safely in protective custody.  



                                    

The superior court denied Daniel's motion to vacate the evaluation order as moot in light  



                                                                                                                         

of Daniel's release.  We conclude that although Daniel's appeal is technically moot, the  



                                                                                                                                       

public interest exception to the mootness doctrine applies, and we reach the merits of his  



due  process  claim.    We  further  conclude  that  the  72-hour  evaluation  order  and  the  



statutory evaluation procedures do not violate due process, and we affirm the evaluation  



order.  But we remand this case to the superior court for correction of the title of the  



superior court's order authorizing Daniel's hospitalization for evaluation.  



II.          FACTS AND PROCEEDINGS  



                         On the morning of February 26, 2013, a police officer took emergency  



                                                                                                                                               

custody of Daniel after Daniel's father reported that Daniel was threatening suicide.  At  



                                                                                        

8:50 a.m. the police officer transported Daniel to the Providence Alaska Medical Center  



Psychiatric  Emergency  Room  under  AS  47.30.705  and  gave  the  Providence  staff  a  



                                                                                                                              2  

"Notice of Emergency Detention and Application for Evaluation."    



                         At  approximately  3:10  p.m.,  Providence  staff  filed  a  "Petition  for  



Involuntary Commitment for Evaluation" under AS 47.30.700 and AS 47.30.710, asking  



the superior court to authorize detention of Daniel at the Alaska Psychiatric Institute  

                                                                                                        



             2           AS 47.30.705(a) provides that "[a] peace officer . . . who has probable   



cause to believe that a person is gravely disabled or is suffering from mental illness and            

is  likely  to  cause  serious  harm  to  self  or  others  of  such  immediate  nature  that  

considerations of safety do not allow initiation of involuntary commitment procedures  

                                                            

set out in AS 47.30.700, may cause the person to be taken into custody and delivered to  

                                                                                                                      

the nearest evaluation facility."  



                                                                               -2-                                                                        6862
  


----------------------- Page 3-----------------------

                                                                     3  

(API) for 72 hours for psychiatric evaluation.   The petition stated that Daniel had a  



                 

history of mental illness with multiple hospitalizations and diagnoses.  It proceeded to  



                                                                                 

detail  Daniel's  suicide  threats  as  well  as  his  violent  threats  against  his  father.    The  



                                                                              

petition concluded that Daniel "refuses mental health intervention, has no insight into his  



mood problem and requires involuntary hospitalization for his safety."  



                    Magistrate  Judge  Jonathon  H.  Lack  signed  the  "Order  on  Petition  for  



Involuntary Commitment for Evaluation" at 3:45 p.m., which authorized transfer of  



                                                                                          4  

                                                                                                            

Daniel to API for an evaluation period not to exceed 72 hours.                              The order stated that the  



        

trial  court  had  considered  the  sworn  allegations  in  the  petition  and  found  that  the  



respondent was likely to cause serious harm to himself because the petition alleged that  



he was "actively suicidal."  



                    The evaluation order required API to have Daniel evaluated by a mental  



health professional and a physician within 24 hours of his arrival.  Daniel was admitted  



to API later that day at 7:29 p.m.  



                    The next day, on February 27 at 3:03 p.m., Superior Court Judge Frank A.  



                                                                              

Pfiffner approved and signed the magistrate judge's recommended order.  The superior  



          3         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  authorizing  hospitalization  for  evaluation"  if  no  

                        

judicial order has been obtained under AS 47.30.700).  



          4         Because hospitalization for evaluation does not constitute an "involuntary  



commitment," the titles of the court system's MC-100 and MC-305 forms have been  

                                                                      

changed during the pendency of this appeal to accurately reflect the statutory language  

                                                                                                     

of  AS  47.30.710.             Form  MC-100  is  now  titled  "Petition  for  Hospitalization  for  

                                                                                                  

Evaluation."    Form  MC-305  is  now  titled  "Order  Authorizing  Hospitalization  for  

Evaluation."   



                                                              -3-                                                       6862
  


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

court scheduled a 30-day commitment hearing for February 28 at 1:30 p.m. to be held   



if a commitment petition was filed during Daniel's detention.  The superior court gave   



Daniel and the Public Defender Agency notice of the scheduled hearing.  



                                                                                                     

                    On the morning of February 28, Daniel filed a motion to vacate the order.  



                                                                                                   

Daniel argued before the superior court that (1) the order violated due process because  



                                              

it was issued ex parte without an emergency justification; (2) the order should not have  



been implemented before it was signed by the superior court judge; (3) the order was  



issued  without  a  sufficiently  searching  inquiry;  (4)  the  findings  were  insufficient  to  



                                                                                               

support the order; (5) the order impermissibly relied on hearsay; and (6) the petition filed  



by Providence staff was defective.  



                                                                                       

                    Later the same morning of February 28, at 11:25 a.m., API evaluation  



                                            

personnel discharged Daniel because they "did not find that [he] met the standards for  



commitment specified in AS 47.30.700."  



                                                                                                  

                    A compliance hearing was held that afternoon.  The State's representative  



                                                              

informed the magistrate judge that Daniel had already been discharged.  Daniel reminded  



                                                                                                   

the court that he had filed a motion to vacate the order that morning and advised the court  



that he did not consider the motion to be moot.  



                    On March 6 the superior court denied Daniel's motion to vacate the order,  



reasoning that the motion was moot in light of Daniel's release.  Daniel appeals his due  



process claim and the denial of his motion to vacate.  



III.      STANDARD OF REVIEW  



                                                                                                                               5  

                                                                                                   

                    We consider whether an order of the superior court is appealable de novo. 



"Mootness is a matter of judicial policy and its application is a question of law" that we  

                                                                                                           



          5         Husseini v. Husseini , 230 P.3d 682, 685 (Alaska 2010).  



                                                              -4-                                                           6862  


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

                                6  

                                   

also review de novo.               Under de novo review, we apply our "independent judgment to  



                                                                                        7  

the interpretation of the Alaska Constitution and statutes."   When reviewing a question  



de  novo,  our  duty  is  to  adopt  "the  rule  of  law  that  is  most  persuasive  in  light  of  

precedent, reason, and policy."8  



IV.	      DISCUSSION  



                                                                                                

          A.	        The Denial Of Daniel's Motion To Vacate The Evaluation Order Was  

                    Appealable.  



                    The State argues that Daniel cannot bring this appeal because the evaluation  



                                                                                                              9 

                                                                                                                 and  because  

order  is  not  a  final  appealable  judgment  under  Appellate  Rule  202(a) 



                                        

Daniel prevailed below.  The State contends that the evaluation order did not resolve a  



civil commitment proceeding but specifically contemplated further proceedings in which  



                                                                                                          

the respondent's mental health status and the necessity of commitment would be litigated  



                   10  

if necessary.          The language of the order states that "examination and evaluation shall  



                                                                                             

be completed within 72 hours" and a "petition for a 30-day commitment shall be filed  



          6         In re Joan K. , 273 P.3d 594, 595-96 (Alaska 2012) (citing In re Tracy C. ,  



249 P.3d 1085, 1089 (Alaska 2011)).  



          7          Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007)   



(footnotes omitted) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).  



          8	        Id.  



          9  

                                                 

                    "[A]n order must constitute a final judgment, such that it 'disposes of the  

                                                           

entire case and ends the litigation on its merits,' for this court to review it on appeal."  

                                                                                  

Husseini , 230 P.3d at 687 (quoting Richard v. Boggs , 162 P.3d 629, 633 (Alaska 2007)).  



          10  

                                                                                                    

                    "The basic thrust of the finality requirement is that the judgment must be  

                                                                 

one which disposes of the entire case, '. . . one which ends litigation on the merits and  

                                                                                                  

leaves nothing for the court to do but execute the judgment.' "  Martech Constr. Co. v.  

Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1153 (Alaska 1993) (omission in original)  

                                                                                                     

(quoting Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1030  

(Alaska 1972)).  



                                                                -5-	                                                        6862
  


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

or the respondent shall be released . . . before the end of the 72-hour evaluation period"  



                                                        11  

in compliance with AS 47.30.715.                             The State argues that no final appealable judgment  



exists unless and until an evaluation order is followed by a commitment hearing and a  



30-day commitment order.    



                                                                                  

                      In its argument, the State does not address the superior court's denial of  



Daniel's motion to vacate the evaluation order as a possible basis for appeal, focusing  



                                                        

only on the evaluation order.  By contrast, Daniel asserts that the denial of his motion to  



                                                                                                                     

vacate ended the litigation and that under this court's precedent "[a] final, appealable  



                                                                                                                            

'judgment' is one that, however denominated, 'disposes of the entire case and ends the  

                                           12   Daniel argues that for the purposes of determining finality,  

                                                            

litigation on the merits.' "  



we have emphasized that "the reviewing court should look to the substance and effect,  

                                                                                                                               

                                                                                          13   Martech  Construction Co. v.  

rather than form, of the rendering court's judgment."  

                                                                                                               



Ogden Environmental Services, Inc., the case relied on by the State, also emphasizes that  

                                                                                           



                                                                                                                                14  

"[t]his court should look to the effect of the judgment, rather than the form."                                                     Daniel  



reasons that after the superior court decided that the motion to vacate was moot, there  



was nothing further he could do; therefore, the case is appealable.  Daniel took care at  

                                                                                                                             



the compliance hearing to state on the record that he did not consider his motion to  

                                                                                       



vacate to be moot.  



           11         AS 47.30.715 provides that "[w]hen a facility receives a proper order for                    



evaluation, . . . [t]he facility shall promptly notify the court of the date and time of the                                           

respondent's arrival.  The court shall set a date, time, and place for a 30-day commitment                       

hearing, to be held if needed within 72 hours after the respondent's arrival . . . ."  



           12         Denali  Fed.  Credit  Union  v.  Lange ,  924  P.2d  429,  431  (Alaska  1996)  



(quoting Borg-Warner Corp. v. Avco Corp. , 850 P.2d 628, 634 (Alaska 1993)).  



           13         Id. (internal quotation marks omitted).  



           14         852 P.2d at 1153.  



                                                                      -6-                                                              6862
  


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

                                                                                                            

                     The State's second argument is that Daniel is not entitled to appeal because  



                                                                                              

the superior court proceedings resolved in his favor when he was released without being  



                                                                                                                             15 

                                                                                                                                and  

committed.  The State characterizes the evaluation order as an interlocutory order 



analogizes the situation to both criminal defendants who are arrested on probable cause  



                                 

but released without conviction and civil litigants who are denied summary judgment but  



                                                     

win at trial.  The State again does not address the denial of Daniel's motion to vacate the  



order.  



                                                                                        

                     Daniel disputes the State's assertion that he prevailed completely in the end  



                                                                                                            

and the relevance of the State's analogies.  He points out that he was released based on  



                                                                 

API's determination that he did not meet commitment criteria.  He argues that the court  



                                                           

never ruled in his favor: the only trial court rulings - the ex parte evaluation order and  



the denial of his motion to vacate - were resolved against him.  



                                                                                                                       

                     We agree with Daniel that the denial of his motion to vacate ended the  



                                                                                                                 

litigation below.  We also agree with Daniel that because his motion was denied, he did  



not prevail completely below.  We "look to the effect of the judgment, rather than the  



           16 

                                                                                      

form,"        and the effect of the denial of Daniel's motion to vacate was to end litigation in  



                                                                                 

the trial court and to leave Daniel with no recourse other than appeal to this court.  We  



                                      

therefore conclude that the denial of Daniel's motion to vacate the evaluation order was  



                  17  

appealable.           



           15        "A  party  generally  may  not  appeal   a  judgment  in  its  favor  in  order  to  



challenge an interlocutory order."  Peter A. v. State, Dep't of Health & Soc. Servs., Office                

of Children's Servs.           , 146 P.3d 991, 994 (Alaska 2006) (citing Fairbanks Fire Fighters  

Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 1165, 1168 (Alaska 2002)).  



           16        Martech , 852 P.2d at 1153.  



           17  

                                                                                                            

                     The State also argues that AS 47.30.765, which provides "[t]he respondent  

                                                                                                                 (continued...)  



                                                                 -7-                                                          6862
  


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

         B.	       Although  This  Case  Is  Now  Moot,  We  Apply  The  Public  Interest  

                   Exception To Mootness In Order To Reach The Merits Of Daniel's  

                   Due Process Claims.  



                   "A claim is moot if it is no longer a present, live controversy, and the party  



                                                                                                  18  

                                                                                                      This court has  

bringing the action would not be entitled to relief, even if it prevails."  



                                                                  

deemed appeals related to commitment orders to be moot when the commitment period  



                 19  

                                                                                                      

has  passed.         But this  rule  is  subject to  at least two  exceptions: the  public  interest  

              20 and the collateral consequences exception.21  

exception                                                                        



          17(...continued)  



has the right to an appeal from an order of involuntary commitment," does not give  

                        

Daniel a right to appeal because the evaluation order was not "an order of involuntary  

commitment."  But Daniel does not base his right to appeal on this statutory provision  

                                                                        

and does not address AS 47.30.765 in his briefing.  



          18       Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 380 (Alaska 2007)  

                                                                            

(quoting Fairbanks Fire Fighters , 48 P.3d at 1167).  



          19       Id. at 380.  Daniel asks this court to reconsider the mootness holding of  



Wetherhorn and argues that "people subjected to involuntary commitment orders have  

                                                     

the right to have their appeals heard on the merits, regardless of whether they have  

demonstrated collateral consequences or the public interest exception to the mootness  

                                                                                                     

doctrine applies."  Because we apply the public interest exception to reach the merits of  

                                                                                                               

Daniel's due process claims, we decline to consider overruling  Wetherhorn's general  

mootness holding.  



         20        Id. at 380-81; E.P. v. Alaska Psychiatric Inst. , 205 P.3d 1101, 1106-07  



                                   

(Alaska 2009); see also In re Joan K. , 273 P.3d 594, 596 (Alaska 2012).  



         21        In re Joan K. , 273 P.3d at 597-98.  



                                                           -8-	                                                    6862
  


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

                    1.        Daniel's appeal satisfies the public interest exception.  



                    We "will . . . consider a question otherwise moot if it falls within the public  

                                                                      

interest exception to the mootness doctrine."22  In determining whether the public interest  

                                                                                             



exception applies, we look to these factors:  "(1) whether the disputed issues are capable  

                                                                                                                   



of repetition, (2) whether the mootness doctrine, if applied, may cause review of the  



issues  to  be  repeatedly  circumvented,  and  (3)  whether  the  issues  presented  are  so  



                                                                                                                     23  

important to the public interest as to justify overriding the mootness doctrine."                                        "None  



of the individual factors is dispositive; rather, we use our discretion to determine whether  

                                                                                

the public interest dictates that immediate review of a moot issue is appropriate."24  

                                                                                                                                



                    In  E.P.  v.  Alaska  Psychiatric  Institute ,  we  applied  the  public  interest  

                                                                                                       



exception when we determined that (1) the questions of statutory  interpretation and  

                                                                                                        



procedure did not depend on the appellant's unique facts and were capable of repetition;  

                            



(2) the questions would circumvent review because of the involuntary commitment time  

            



frame;  and  (3)  the  questions  raised  were  "important  to  the  public  interest"  because  



involuntary  commitment  entails  a  "  'massive  curtailment  of  liberty,'  "  and  "[t]he  

                                                                                             



interpretation and scope of involuntary commitment statutes affect the power of the state  

                                                                                                                    



                                                                            25  

to curtail the liberty of any member of the public."                            All three factors weigh in favor of  

                                                           



review in this case.  



          22         Wetherhorn, 156 P.3d at 380.  



          23        Id. at 380-81 (quoting  Akpik v. State, Office of Mgmt. & Budget , 115 P.3d  



532, 536 (Alaska 2005)).  



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

                                                                                            

1165, 1168 (Alaska 2002).  



          25        205 P.3d at 1106-08 (quoting  Wetherhorn, 156 P.3d at 375).  



                                                               -9-                                                         6862
  


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

                                            26 

                    First, as in E.P.,   the disputed issues in this case do not depend heavily on  



                                                                                             

Daniel's unique facts and therefore are capable of repetition. "When disputed issues turn  



                                              

on  unique  facts  unlikely  to  be  repeated,  we  have  refused  to  find  an  exception  to  



                 27 

                                                

mootness."           But Daniel is not challenging his initial detention, which might entail case- 



                                                                                                

specific factual analysis, but rather the fact that he was subject to an ex parte evaluation  



order.  The question of the constitutionality of subjecting someone in custody under  



                                                                                                     

AS 47.30.705 to an ex parte proceeding arises every time that an evaluation petition is  



filed under AS 47.30.710(b).  



                     Second, due process challenges to evaluation orders under AS 47.30.710(b)  



                                                                                                       

will repeatedly circumvent review because the authorized 72-hour confinement period  

will have long since expired before an appeal can be heard.28  



                                                        

                    Third,  Daniel  argues  that  the  question  whether  people  are  regularly  



subjected to unconstitutional ex parte proceedings in the superior court presents an issue  



                                                                                                                

of  sufficient  importance  to  the  public  interest  as  to  justify  overriding  the  mootness  



                                                                                       

doctrine.  Daniel also notes the importance of providing guidance to courts as to when  



such ex parte orders are permissible.  The State argues that this case does not warrant  



discretionary  review.    But  Daniel's  due  process  claims  do  implicate  the  scope  and  



          26        Id. at 1107.  



          27        Id. (citing Wetherhorn, 156 P.3d at 381, where we found the public interest       



exception  inapplicable    under  the  first  prong  because  the  facts  were  specific  to  

Wetherhorn and therefore the issue was not capable of repetition).  



          28        See id. (stating that "[i]t is quite unlikely that an appeal from a 30-day or  



                                                                                     

90-day commitment, or even a 180-day commitment, could be completed before the  

commitment has expired").  



                                                               -10-                                                         6862
  


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

                                                                                                 

interpretation of the statutory provisions that allow the State to curtail the liberty of  



                                  29  

members of the public.    We thus conclude that Daniel's claims satisfy the third factor.  



                                  

                    Because all three factors of the public interest exception to the mootness  



                                                                                                                           30  

doctrine are satisfied, we conclude that we will review Daniel's due process claims.                                           



                                                              

                    2.	      Daniel's evaluation order form, based on a court system form,  

                             contained inaccurate language which we have corrected.  



                    Daniel argues that the collateral consequences exception to the mootness  



doctrine  should  be  extended  to  the  appeal  of  orders  authorizing  hospitalization  for  



                31 

                                                                                                           

evaluation.         He points to the former title of form order MC-305, "Order on Petition for  



          29	       See id.  



          30        Daniel argued in the alternative that if this court holds his appeal moot and  



declines review, this court should order a vacatur of the order.  Because we reach the  

merits of Daniel's claim, we do not decide whether vacatur of the superior court's order  

would have been appropriate if we had dismissed his claim as moot.  We do note the  

                                                                                                         

availability of a potential alternative remedy under AS 47.30.850, which provides:  



                    Following the discharge of a respondent from  a  treatment  

                                                                                   

                    facility or the issuance of a court order denying a petition for  

                                                      

                    commitment, the respondent may at any time move to have  

                                                                                                  

                    all court records pertaining to the proceedings expunged on  

                    condition that the respondent file a full release of all claims  

                    of  whatever  nature  arising  out  of  the  proceedings  and  the  

                    statements and actions of persons and facilities in connection  

                                                          

                    with the proceedings.  Upon the filing of the motion and full  

                                                                                                 

                    release,   the   court   shall   order   the   court   records   either  

                    expunged         or    sealed,       whichever         the     court      considers  

                    appropriate under the circumstances.  



          31        "[T]he collateral consequences doctrine 'allows courts to decide otherwise- 



                                                                                                               

moot cases when a judgment may carry indirect consequences in addition to its direct  

                                                                                                            

force, either as a matter of legal rules or as a matter of practical effect.' "  In re Joan K. ,  

                                                                                     

273 P.3d 594, 597-98 (Alaska 2012) (quoting Peter A. v. State, Dep't of Health & Soc.  

                                                                                                           (continued...)  



                                                             -11-	                                                      6862
  


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

Involuntary Commitment for Evaluation," to argue that an order authorizing a 72-hour           



hospitalization          for     evaluation         under      AS      47.30.710(b)           could      entail      collateral  



consequences similar to those of an involuntary commitment order.  



                                                      

                    We acknowledge that the former title of the form order incorrectly referred  



                                                                                            

to  involuntary  commitment  instead  of  using  the  statutory  language,  "ex  parte  order  



                                                                      

authorizing  hospitalization  for  evaluation,"  found  in  AS  47.30.710(b).    And  we  



                                                             

understand Daniel's concerns about the possibility of collateral consequences stemming  



                                                                                                 

from the use of the term "involuntary commitment" to refer to a 72-hour hospitalization  



for evaluation under AS 47.30.710(b).  As noted above, we have taken administrative  



action  during  the  pendency  of  this  appeal  to  correct  the  title  of  forms  MC-100  and  



                                                                                                           

MC-305.  Form MC-100 is now titled "Petition for Hospitalization  for Evaluation."  



Form  MC-305  is  now  titled  "Order  Authorizing  Hospitalization  for  Evaluation."  



Because we reach the merits of Daniel's due process claims under the public interest  



exception to the mootness doctrine, we do not further address the applicability of the  



collateral consequences exception in the context of a 72-hour evaluation order.  



          C.	       The  Evaluation  Order  Issued  Ex  Parte  Did  Not  Violate  Daniel's  

                    Constitutional Right to Due Process.  



                                                                       

                    Daniel claims that his procedural due process rights were violated because  



                             

he  was  not  given  notice  and  a  hearing  prior  to  the  issuance  of  the  order  that  he  be  



                                                                                                                   

hospitalized  for  a  72-hour  evaluation.    He  argues  that  because  he  was  already  in  



                                              

protective custody, there was no emergency that would justify the lack of notice and a  



hearing before the issuance of the 72-hour evaluation order.  



          31(...continued)  



Servs., Office of Children's Servs., 146 P.3d 991, 994-95 (Alaska 2006)).  



                                                              -12-	                                                            6862  


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

                      1.	       An  evaluation  order  issued  in  compliance  with  AS  47.30.710  

                                satisfies  Wetherhorn's requirement of an "expedited process."  



                      Daniel relies on  Wetherhorn v. Alaska Psychiatric Institute, in which we  



held that "[i]nvoluntary commitment implicates Alaska's constitutional guarantees of  



individual  liberty  and  privacy  and  therefore  entitles  the  respondent  to  due  process  



                     32  

protections."            Although  Daniel  was  not  subjected  to  an  involuntary  commitment  



proceeding,  he  is  correct  to  assert  that  his  emergency  detention  and  subsequent  



                                                                              

hospitalization for evaluation also implicate due process protections.  In Wetherhorn, we  



                                                                                              

emphasized that the process following initial confinement under an ex parte order under  



                                                                                                                       

AS  47.30.705  must  be  "expedited,"  stating:  "The  expedited  process  required  for  



                                                                                                            

involuntary  commitment proceedings is aimed  at mitigating  the infringement  of  the  



respondent's   liberty   rights   that   begins   the   moment   the   respondent   is   detained  



                        33  

involuntarily."              



                      Alaska  Statutes  Title  47  details  a  mandatory  timeline  for  emergency  



                                                                                                                             

psychiatric detention and evaluation which reflects the legislative concern for the liberty  



                                                                                                

interests at stake.  Alaska Statute 47.30.710(a) requires that a person who is detained for  



a psychiatric emergency be examined and evaluated by a mental health professional and  



                                                                                              

a  physician  within  24  hours  of  arrival  at  an  evaluation  facility.    If,  after  the  initial  



                                                                                                                            

emergency examination, the mental health professional has reason to believe the person  



                                                                                                     

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  



           32	        156 P.3d 371, 379 (Alaska 2007) (citations omitted);                                   see also Addington  



v. Texas, 441 U.S. 418, 425 (1979) ("[C]ivil commitment for any purpose constitutes a     

significant deprivation of liberty that requires due process protection.").  



           33	        Wetherhorn, 156 P.3d at 381.  



                                                                   -13-                                                                 6862  


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

                34 

                                                                                                            

treatment,"        then AS 47.30.710(b) permits the mental health professional to arrange for  



the hospitalization of the person for evaluation on "an emergency basis."  



                         

                   In response to Daniel's argument that there was no on-going psychiatric  



                                                                                      

emergency, we note that he does not challenge his initial emergency detention by the  



                                                  

police  officer.    Less  than  seven  hours  passed  between  the  initial  detention  and  the  



issuance of the evaluation order.  Daniel was transported to API and admitted within four  



                                                                                           

hours of the issuance of the order.  The psychiatric personnel who filed the petition for  



evaluation stated under oath that Daniel continued to present a threat of harm.  Other  



than the fact of being in custody, there is nothing in the record to indicate that the initial  



emergency  had  abated  before  the  issuance  of  the  evaluation  order.    Based  on  



AS  47.30.710(b)'s  provision  for  hospitalization  for  a  72-hour  evaluation  on  "an  



                                                                                                      

emergency basis," the legislature clearly envisioned that a psychiatric emergency could  



continue   past   the   initial   emergency   detention.      Daniel's   evaluation   order   was  



appropriately issued on an emergency basis under AS 47.30.710(b).  



                                                                   

                    The 72-hour hospitalization for evaluation on an emergency basis  must be  



approved  by  a  judicial  officer  via  an  "ex  parte  order  authorizing  hospitalization  for  



                  35  

evaluation."          After receiving a proper order, the evaluation facility "shall accept the  



                                                                                                                   36  

                                                                                                                        The  

order  and  the  respondent  for  an  evaluation  period  not  to  exceed  72  hours." 



evaluation facility must "promptly notify the court of the date and time" of the person's  



                                                                                       

arrival  in  order  to  ensure  that  a  full  30-day  commitment hearing  is  held,  if  needed,  



          34       AS 47.30.710(b).   In Wetherhorn, we concluded that the state's involuntary  



commitment statutes satisfy due process if they are construed to require a showing that  

                                

a respondent is both (1) mentally ill and (2) in danger of harming himself or others or  

                                                                                                                  

unable to live safely outside a controlled environment.   Wetherhorn, 156 P.3d at 384.  



          35       AS 47.30.710(b).  



          36       AS 47.30.715.  



                                                            -14-                                                       6862
  


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

                                                            37  

"within 72 hours" of the person's arrival.                     "If at any time in the course of the 72-hour  

                                                                                               



period  the  mental  health  professionals  conducting  the  evaluation  determine  that  the  



respondent does not meet the standards for commitment . . . , the respondent shall be  

discharged from the facility . . . ."38  



                   The result of this statutory framework is that a person in Daniel's position  

                                              



is  given  an  initial  evaluation  within  24  hours.    If  the  mental  health  professional  

                   



determines that further evaluation is necessary, the statutory structure then ensures that  

                                                                      



a judicial officer will review the probable cause justifying the initial emergency detention  

               

as well as the justification for additional emergency hospitalization and evaluation.39  



This second evaluation must be completed within 72 hours and followed by the release  

                                                                         



of   the   respondent   or   a   30-day   commitment   hearing   with   extensive   procedural  

                                                                                     



                 40  

protections.         We conclude that the emergency psychiatric detention and evaluation  



statutes applied in Daniel's case satisfy Wetherhorn's requirements because they provide  



for  an  expedited  process  that  is  appropriately  protective  of  the  respondent's  liberty  



interests and that avoids unnecessarily prolonging the respondent's emergency detention.  



          37       Id.  



          38       AS 47.30.720.  



          39       See  AS  47.30.705  (allowing  for  emergency  psychiatric  detention  and  



evaluation of a person when a peace officer, a psychiatrist or physician, or a clinical  

psychologist "has probable cause to believe that [the] person is gravely disabled or is  

suffering from mental illness and is likely to cause serious harm to self or others of such  

immediate nature that considerations of safety do not allow  initiation of involuntary  

                                                                                          

commitment procedures set out in AS 47.30.700").  



          40       See AS 47.30.735 (establishing the procedures and standards for 30-day  



commitments).  



                                                            -15-                                                      6862
  


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

                  2.	     The Mathews  v.  Eldridge  test  applies  to  Daniel's  due  process  

                          claim regardless of the existence of an emergency situation.  



                  In analyzing Daniel's due process claim, we apply the foundational test  

                                  41  Daniel disputes the applicability of the Mathews v. Eldridge  

from Mathews v. Eldridge .                                 



test.  He argues that we should not reach the Mathews v. Eldridge analysis in this case  

                                                



because due process mandates a per se rule of notice and a hearing before deprivation  



                                          

absent an emergency situation, and that in this case there was no emergency to justify the  



lack of prior notice and a hearing.  We disagree that the application of the Mathews v.  



Eldridge analysis depends on the existence of an emergency.   



                  Daniel cites to the recent decision of this court in Patrick v. Municipality  



of Anchorage, Anchorage Transportation Commission for the proposition that a party  



is  automatically  "entitled  to  some  form  of  hearing  appropriate  to  the  circumstances  



before revocation, absent an emergency situation or a public safety concern requiring  

                       42  Even though there was no emergency situation in Patrick , we still  

summary action."                                           



applied the Mathews v. Eldridge balancing test:  



         41       424  U.S.  319,  334-35  (1976)  (announcing  the  test  for  due  process  



deprivations  under  the  federal  constitution).    We  described  the  Mathews  test  as  

                                                                                                         

"instructive"  when  interpreting  the  requirements  of  due  process  under  the  Alaska  

Constitution in City of Homer v. State, Department of Natural Resources, 566 P.2d 1314,  

                                                                                               

 1319 (Alaska 1977), and we recently stated in Patrick v. Municipality of Anchorage,  

Anchorage Transportation Commission , 305 P.3d 292, 299 (Alaska 2013), that "[w]e  

look to the [Mathews test] to determine the requirements of due process."  



         42       305 P.3d at 299 (emphasis in original) (footnote omitted).  



                                                      -16-	                                                6862
  


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

                   Due process does not require any specific type of hearing.  

                   The necessary opportunity to be heard depends on the nature  

                   of the case; it is "not fixed in form."  We look to the test set  

                                                                         

                   forth  by  the  United  States  Supreme  Court  in  Mathews  v.  

                                                                                                 [43] 

                   Eldridge to determine the requirements of due process.  



Daniel also cites to Zinermon v. Burch where the U.S. Supreme Court similarly stated  

                                            



that "[d]ue process . . . is a flexible concept that varies with the particular situation" and  



                                                                                           44  

applied the Mathews v. Eldridge test in a civil commitment case.                                



                   Whether  or  not  there  was  an  emergency  situation  at  the  time  of  the  

                                                                                                                 



evaluation order, our precedent dictates that the Mathews v. Eldridge test applies in the  

                                                          



due process analysis.  



                   3.	      The  Mathews  v.  Eldridge  factors  weigh  against  Daniel's  due  

                            process claim.  



                   In order to determine if Daniel's hospitalization for evaluation complied  

                                                                                         



with due process, we apply the Mathews v. Eldridge due process balancing test:  



                   [The]  identification of the specific dictates of due process  

                   generally  requires  consideration  of  three  distinct  factors:  

                   First, the private interest that will be affected by the official  

                   action; second, the risk of an erroneous deprivation of such  

                   interest through the procedures used, and the probable value,  

                                                                        

                   if any, of additional or substitute procedural safeguards; and  

                                                    

                   finally,  the  Government's  interest,  including  the  function  



         43        Id. (footnotes omitted).   



         44        494 U.S. 113, 127 (1990).   



                                                          -17-                                                     6862  


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

                     involved and the fiscal and administrative burdens that the  

                     additional        or    substitute   procedural   requirement                     would  

                              [45] 

                     entail.  



                          

                     In applying this test, we conclude that Daniel's procedural due process  



rights were not violated, that the State's emergency detention and evaluation procedures  



                               

worked  efficiently  and  effectively,  and  that  the  additional  protections  that  Daniel  



advocates would likely lengthen unnecessary confinement.  



                                                  

                     In  characterizing  the  "private  interest"  affected  pursuant  to  the  first  



                                                                                                               

Mathews v. Eldridge factor, the State distinguishes between the purpose and meaning of  



                                 

a 72-hour evaluation order and a 30-day involuntary commitment order.  The State notes  



                                                                                        

that a 30-day commitment order indicates that a court has found by clear and convincing  



                                                                                                 

evidence that the respondent is mentally ill and a danger  to  himself or others, or is  



                          46  

                                                                                          

gravely disabled.              The State argues that the purpose of a 72-hour evaluation order, on  



                                                                                                               

the other hand, is to obtain a professional medical opinion on whether commitment is  



                                 

necessary  and  does  not  mean  that  a  court  has  definitely  ruled  on  a  respondent's  



                                             

condition.  The State asserts that the private interest at stake in this case is not freedom  



                                                                                               

from confinement since Daniel does not challenge his initial emergency detention, but  



rather  Daniel's  interest  in  not  being  subjected  to  further  emergency  psychiatric  



evaluation under a 72-hour evaluation order.  



          45        Mathews , 424 U.S. at 334-35.  



          46         See In re Joan K.           , 273 P.3d 594, 598 (Alaska 2012) ("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.'  "  (alteration  in  original)  (quoting  

AS 47.30.735(c))).  



                                                               -18-                                                          6862
  


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

                                                                            

                     In  Wetherhorn, we recognized that the "infringement of the respondent's  

liberty rights . . . begins the moment the respondent is detained involuntarily."47                                            We  



                                                                                   

decline to parse the magnitude of the liberty interest at stake in a 72-hour evaluation that  



                         

followed  from  an  uncontested  emergency  detention.    But  we  recognize  that  Daniel  



                                                           

himself has an interest in an accurate and expedited emergency evaluation and prompt  



judicial review of his emergency detention and evaluation.  



                                                                                                                   48  

                     The reasoning of the Washington Supreme Court in In re Harris                                    is helpful  



                                                           

in considering the private interest at stake in a psychiatric emergency as well as the  



practical effects of Daniel's due process argument in emergency situations.  The court  



addressed the constitutionality of the involuntary detention provisions contained in a  



Washington statute that permitted the 72-hour detention of a person who presented a  

"likelihood of serious harm to others or himself."49  The Washington court addressed the  



                                                                                                                                  50  

                

statutory requirement of " 'imminent danger' for temporary emergency detentions." 



                                                                                                            51  

The court recognized that "the potential deprivation of liberty is great."                                      But the court  

                                                                                 



also noted "the practical effect of being placed in the hospital will usually eliminate the  

                                                                                               

 'imminence' of one's dangerousness."52  It concluded: "If we were to require 'imminent  

                                                                                     



danger' as a requirement of continued commitment, we would be creating a standard that  

                                                                                                                



          47         Wetherhorn v. Alaska Psychiatric Inst.                    , 156 P.3d 371, 381 (Alaska 2007).
  



          48         654 P.2d 109 (Wash. 1982).
  



          49
       Id. at 110 (quoting a Washington statute that has since been revised).  



          50        Id. at 113 (same).  



          51        Id.  



          52        Id.  



                                                               -19-                                                         6862
  


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

                                                                                                            53  

                                      

(in many cases) would invalidate commitment as soon as it occurs."                                              Similarly, if this  



                                                   

court found that the emergency that justified Daniel's initial detention was abated simply  



by the fact of custody, then emergency detention would often be invalidated as soon as  



                                                                                  

it occurred without a full psychiatric evaluation of the respondent's condition, need for  



                                                                                                54  

treatment, and "likelihood of serious harm to self or others."                                       



                                                                           

                     In applying the second Mathews v. Eldridge factor, we conclude that the  



                                                                                                                           

risk of an erroneous deprivation through the procedures used is relatively low.  The  



                                                                                                      

evaluation petition was filed by disinterested medical staff after determining that Daniel  



                                                         

was  in  need  of  a  full  psychiatric  evaluation.    A  neutral  magistrate  judge  promptly  



                                                                                                                        

reviewed  the  petition  and  determined  that  it  stated  adequate  cause  to  support  an  



                  55  

                             

evaluation.           We recognize that preliminary determinations may be incorrect and result  



           53        Id.  



           54        AS 47.30.710(b).  



           55        Although neither party briefs the applicability of the Fourth Amendment   



protection  against  unreasonable  seizures  in  the  context  of  emergency  psychiatric  

detention  and  evaluation,  we  note  that  federal  precedent  exists  applying  the  Fourth  

Amendment to involuntary hospitalization of persons for psychiatric reasons.  See Ahern  

                                                                                                                                 

v.  O'Donnell,  109  F.3d  809,  815-16  (1st  Cir.  1997)  (concluding  that  seizing  an  

                                                                                                                 

individual for involuntary hospitalization pursuant to state  statute required probable  

                                                                                                  

cause);  Villanova v. Abrams, 972 F.2d 792, 795 (7th Cir. 1992) ("A civil commitment  

                              

is a seizure, and may be made only upon probable cause . . . ."); United States v. Shields,  

                                                                                          

522 F. Supp. 2d 317, 332 (D. Mass. 2007) ("It is well-settled that the Fourth Amendment  

                                                                   

protection against unreasonable seizures applies to the involuntary hospitalization of  

persons for psychiatric reasons."). The United States Supreme Court has determined that  

                                                                                    

"[w]hen the stakes are . . . high, the detached judgment of a neutral magistrate is essential  

                                                  

if  the  Fourth  Amendment  is  to  furnish  meaningful  protection  from  unfounded  

interference with liberty."  Gerstein v. Pugh, 420 U.S. 103, 114 (1975) ("[T]he Fourth  

                                                                                                                   

Amendment  requires  a  judicial  determination  of  probable  cause  as  a  prerequisite  to  

extended restraint of liberty following arrest.").  Absent emergency or extraordinary  

                                                                                                                     (continued...)  



                                                                  -20-                                                            6862
  


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

     

in unnecessary 72-hour evaluations.  But the evaluation period may also not last a full  



72 hours, and the result of the evaluation may be immediate freedom.  This is in fact  



what happened to Daniel.  



                                                

                    The record shows that the State complied with the statutory requirements  



                                                           56 

                                                                                                         

for emergency detention and evaluation                        and that Daniel would have received a post- 

deprivation hearing with extensive procedural protections57 within the time required by  



                                                                  58  

statute had a commitment petition been filed.                         We agree with the State's position that  



                                            

a prompt evaluation under an expeditiously issued ex parte order is more likely to result  



                                                                       

in the prompt release of a respondent who does not meet the standards for commitment  



                                                                                        

than a procedure under which a full psychiatric evaluation does not occur until after a  

                                              59  As a practical matter, a pre-evaluation hearing could  

                                                                                      

contested hearing with counsel.  



not occur as quickly as an ex parte order and would likely  lengthen  a respondent's  



          55(...continued)  



circumstances,  the  probable  cause  determination  should  occur  within  48  hours  of  

detention.  Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991).  



          56        AS 47.30.715 provides:  



                                                                             

                    When a facility receives a proper order for evaluation, it shall  

                    accept the order and the respondent for an evaluation period  

                    not to exceed 72 hours. . . . The court shall set a date, time,  

                    and place for a 30-day commitment  hearing, to be held if  

                                                                            

                    needed within 72 hours after the respondent's arrival . . . .  



          57        See AS 47.30.730-.735.  



          58  

                                                                                                

                    The superior court scheduled a 30-day commitment hearing to be held two  

days after Daniel's initial detention, but Daniel was released prior to the scheduled time.  



          59  

                                                                                                             

                    Because Daniel did not brief the Mathews v. Eldridge test, the court was not  

presented with proposed alternative procedures to an ex parte evaluation order.  At oral  

argument, however, Daniel argued that due process at the very least required a hearing  

                                                                             

with appointed counsel prior to the issuance of a 72-hour evaluation order.  



                                                             -21-                                                       6862
  


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

unnecessary confinement beyond 72 hours.  We conclude that this would defeat the  



                                                                                                              

legislative scheme and could result in a greater deprivation of an individual's liberty than  



the expedited emergency evaluation and judicial review process now in place.   



                         

                    In  applying  the  third  Mathews  v.  Eldridge  factor,  which  looks  to  the  



government's interest and the burdens of an alternative procedure, we agree with the  



                    

State  that  it  has  a  strong  interest  in  obtaining  a  prompt  psychiatric  evaluation  of  a  



respondent  who  has  been  detained  on  an  emergency  basis  to  determine  if  civil  



                                      60 

                                                                                                     

commitment is warranted.                  We recognize the practical importance of evaluation orders  



for the functioning of the civil commitment system and the necessity of providing the  



                                                                         

court in a subsequent 30-day commitment hearing with the opinion of an informed health  



professional.  



                   We conclude that a pre-evaluation hearing with appointed counsel would  



                                                                          

provide little additional benefit to the respondent.  Sufficient due process is provided by  



                                                                                                  

the statutory requirements for a speedy evaluation and either release or subsequent court  



            61  

hearing.        We therefore conclude that Daniel's right to due process was not violated.  



V.        CONCLUSION  



                   We  AFFIRM  the  superior  court's  evaluation  order  and  REMAND  for  



correction of the title of the order in accordance with this opinion.  



          60        In accordance with the applicable Alaska Statutes, Daniel's emergency  



detention was reviewed by a detached and neutral magistrate less than eight hours after  

his initial detention.  As a practical matter, requiring an adversarial hearing prior to  

judicial review of an emergency psychiatric detention would likely entail that a person  

                            

in  Daniel's  position  would  be  detained  longer  than  48  hours  before  a  judicial  

                   

determination of probable cause could be made.  This would adversely affect the State's  

                                                                      

interest in promptly ensuring that persons in Daniel's position are not detained without  

                                                                                                 

probable cause.  



          61       See AS 47.30.700-.735.  



                                                            -22-                                                         6862  

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