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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 Gabriel C. (4/4/2014) sp-6886

In Re Necessity for the Hospitalization of Gabriel C. (4/4/2014) sp-6886

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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In the Matter of the Necessity for the                )  

Hospitalization of                                    )        Supreme Court No. S-14256  


GABRIEL C.                                            )        Superior Court No. 3AN-11-00358 PR  


                                                      )        O P I N I O N  


                                                      )        No. 6886 - April 4, 2014  


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


                  Judicial District, Anchorage, Sen K. Tan, Judge.  

                  Appearances:  Kelly R. Taylor, Assistant Public Defender,  

                  and   Quinlan   Steiner,   Public   Defender,   Anchorage,   for  

                  Appellant.  Michael G. Mitchell, Senior Assistant Attorney  

                  General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                  General,  Juneau,  for  Appellee.    Meg  Allison  Zaletel  and  

                  Mark Regan, Anchorage, for Amicus Curiae Disability Law  

                  Center of Alaska.  

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


                  Bolger, Justices.  

                  BOLGER, Justice.  


                  The respondent in a mental health commitment proceeding argues that the  

delay between his detention and his involuntary commitment hearing violated time limits  


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

imposed by statute and due process of law.  But we conclude that the relevant statutory  


time limit begins upon a respondent's arrival at an evaluation facility, that there was no  


obvious or prejudicial statutory violation in this case, and that the delay in this case did  


not  violate  due  process.    We  also  conclude  that  the  respondent's  appeal  of  his  


involuntary medication order is now moot.   



                    On  Sunday,  February  20,  2011,  Gabriel  C.   was  taken  into  protective  


custody by the Kenai Police Department, after his family reported that he was off his  


psychiatric  medication  and  displaying  erratic  and  threatening  behavior.    He  was  

transported  to  Central  Peninsula  Hospital,  where  a  licensed  clinical  social  worker  

conducted   an   emergency   examination   and   prepared   a   petition   for   involuntary  



                    That same day, at 5:00 p.m., an Anchorage committing magistrate signed  

an ex parte order authorizing Gabriel to be transported to Alaska Psychiatric Institute  


                                   The order stated that the evaluation had to be completed within  

(API) for evaluation.                                                     

72 hours of Gabriel's arrival at that facility. The Public Defender Agency was appointed  


and granted access to Gabriel's records.  The following day was a judicial holiday, so the  


master's order was not approved by the superior court until February 22.  After the judge  


signed the order, it was distributed to the Attorney General's Office, the Public Defender  


Agency, and to API.  

                    Gabriel was not transported to API until late the next day, arriving at about  

1:30 a.m. on Thursday, February 24.  On Monday, February 28, API filed a petition for  


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

          2         Under Alaska Probate Rule 2(b)(3)(C), a master's order of commitment is   

effective pending superior court review.  

                                                                -2-                                                             6886  

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a  30-day  commitment  and  a  petition  for  permission  to  administer  psychotropic  


medication.  A master held a hearing the following day - Tuesday, March 1, at 1:55  


p.m. - and approved API's requests.  At the hearing, Gabriel's counsel objected to the  


delay  in  transportation  following  the  ex  parte  order,  but  she  conceded  that,  after  

excluding the intervening weekend, the hearing was held within 72 hours of Gabriel's  


arrival at API.  The master commented that he had been told that API had been routinely  



refusing  to  accept  patients  referred  for  involuntary  evaluation,   and  on  review,  the  


superior  court  noted  that  the  delay  was  possibly  caused  by  an  API  policy  to  delay  

accepting patients when its capacity had been reached.  

                     Gabriel filed timely objections to the master's report, and the superior court  


affirmed the master's approval of API's requests as to both commitment and medication.  


Gabriel now appeals, arguing that the delay in the hearing violated the 72-hour statutory  


deadline for a commitment hearing and his constitutional right to due process of law, and  

that the order for involuntary medication was entered in error.  

          3          The master stated:   


                               [T]here  are  a  number  of  cases  .  .  .  and  I  know  this  from  


                               talking to the magistrate in Seward. . . . [T]hat they've called  

                               and made arrangements to bring somebody to API and API  

                               says don't bring them, you hold them there.  Whether it's in  


                               a jail or a hospital somewhere people are being held in the  


                               Mat-Su Valley and Seward or Kenai and they can't come to  


                               the hospital until the hospital says they can come here.  

                                                                -3-                                                          6886

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                    We apply our independent judgment to the interpretation of the Alaska  


Constitution and the mental health commitment statutes.4  We also apply our independent  


judgment to determine if a pending controversy is moot.      


          A.	       Violation Of The Statutory Deadline For A Commitment Hearing Was  

                    Not Plain Error.  


                    After a person is detained by a police officer and brought to an evaluation  

facility,  a  physician  and  a  mental  health  professional  must  conduct  an  emergency  



evaluation within 24 hours.   If warranted, the mental health professional may apply for  


an ex parte order authorizing hospitalization for a full evaluation.   If authorized, the full  

evaluation must be completed within 72 hours.8  


                    The 72-hour time limit is referenced in different parts of the commitment  

statutes.  Alaska Statute 47.30.715 states that "[w]hen 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."  Later in the same section, the statute states that the court shall set  



a time for a commitment hearing "within 72 hours after the respondent's arrival." 

addition, AS 47.30.725(b) states:  

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

          5        In re Tracy C. , 249 P.3d 1085, 1089 (Alaska 2011).

        AS 47.30.710(a).  

          7         AS 47.30.710(b).  

          8         AS 47.30.715.  

          9	       Id.  

                                                             -4-	                                                      6886

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

                    Unless a respondent is released or voluntarily admitted for  


                    treatment within 72 hours of arrival at the facility or, if the  

                    respondent is evaluated by evaluation personnel, within 72  

                    hours from the beginning of the respondent's meeting with  


                    evaluation  personnel,  the  respondent  is  entitled  to  a  court  


                    hearing to be set for not later than the end of that 72-hour  



Finally, under AS 47.30.805(a), computation of the evaluation period does not include  


"Saturdays, Sundays, legal holidays, or any period of time necessary to transport the  

respondent to the treatment facility."   

                    Gabriel C. argues that the evaluation period begins to run immediately after  


the court issues an order authorizing an evaluation, even when the order authorizes  


transportation to another facility.  But this argument is not consistent with the language  


of the statute.  As noted above, AS 47.30.715 states that the "evaluation period" for a full  


evaluation  begins  to  run  when  the  evaluation  facility  accepts  "the  order  and  the  


respondent."  This language implies that the "evaluation period" does not begin until  


after the court issues its order authorizing hospitalization for a full evaluation.  And both  


AS 47.30.715 and  AS  47.30.725(b) refer to the respondent's "arrival" at the facility  

where the evaluation is to be conducted.  We thus interpret these statutes to require that,  

if the ex parte order authorizes the respondent's transportation to another facility for  

evaluation, the 72-hour period begins upon the respondent's arrival at that facility.   

                    In this case, the 72-hour deadline did not begin to run until Gabriel's arrival  


at API. But there is no dispute that the commitment hearing was actually held more than  

12 hours after the statutory deadline.   

                                                               -5-                                                         6886

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


                    In the superior court, Gabriel did not argue that his hearing was held more  

                                                                                                                 10  A plain  


than 72 hours after his arrival at API.  So we review this issue for plain error. 

error involves an "obvious mistake" that is "obviously prejudicial."11  Here, the violation  


of  the  statutory  deadline  would  not  have  been  obvious  to  the  master  who  held  the  


commitment hearing. After excluding the intervening weekend, the hearing was held on  


the third day following Gabriel's arrival at API, and his attorney conceded that it did not  

appear that the State had exceeded the deadline following his arrival at that facility.12  


                    We likewise conclude that Gabriel suffered no obvious prejudice from this  

delay.  Gabriel does not dispute that the superior court had a sufficient basis for the order  


of involuntary commitment.  So Gabriel likely would have been confined for the same  

period, even if the hearing had been held 12 hours earlier.  


                    However, the commitment statutes also suggest that a respondent must be  


transported to an evaluation facility without delay. For example, under AS 47.30.710(b),  


the mental health professional who performs the initial emergency examination may be  



required to arrange for the patient's hospitalization "on an emergency basis." 

AS 47.30.715, after an evaluation facility receives an ex parte order for evaluation, "it  


shall  accept the order  and the respondent  for an evaluation period not to exceed 72  

          10        See Paula E. v. State, Dep't of Health & Soc. Servs ., 276 P.3d 422, 436  

(Alaska 2012).  

          11        Adams v. State , 261 P.3d 758, 773 (Alaska 2011);                           State, Dept. of Rev. v.  

Mitchell , 930 P.2d 1284, 1288 (Alaska 1997) (internal citations and quotation marks  


          12        The superior court found that Gabriel conceded that API conducted the  

hearing within 72 hours. And, while Gabriel objected to the master's report on a number  


of grounds, he did not object to the delay at API.  

          13        AS 47.30.710(b) (emphasis added).  

                                                              -6-                                                        6886

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


hours."      Taken   together,   these   provisions   evidence   a   legislative   intent   that  the  

respondent  who  is  subject  to  an  emergency  ex  parte  order  must   be  transported  

immediately to the nearest evaluation facility so that the 72-hour evaluation period can       

begin without delay.   

                     In  this  case,  the  record  does  not  establish  the  cause  for  the  delay  in  

Gabriel's  transportation.    But  it  is  clear  to  us  that  the  legislature  did  not  intend  to  


authorize  these  evaluations  to  be  delayed  simply  because  the  nearest  designated  

evaluation facility is filled to capacity.  

                     In its brief on appeal, the State attached a Uniform Administrative Order  


stating that, if a respondent cannot be transported to an evaluation facility within 24  


hours of the ex parte order, the State is required to file a status report with the court that  


issued the order.  The assigned judicial officer may then take any necessary action.  And  


at oral argument, the State conceded that this action could include an evaluation by  


qualified personnel at another facility. There may be other alternatives. But we take this  


opportunity  to  stress  that  the  assigned  judicial  officer  should  not  hesitate  to  take  

appropriate action to expedite an evaluation if the respondent cannot be transported to  

the initially designated facility without delay.  


          B.         The Delay In The Commitment Hearing Did Not Violate Due Process.  


                     Gabriel also contends that the delay in this case violated his constitutional  

right to due process of law.  We apply a three-part balancing test to determine what  

process is due, including:  (1) the private interest that will be affected by the official  


action; (2) the risk of an erroneous deprivation of such interest through the procedures  

          14         AS 47.30.715 (emphasis added).  

                                                                 -7-                                                              6886  

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

used; and (3) the  State's interest, including the fiscal and administrative burdens of  

additional procedural requirements.15  

                    We have previously recognized that involuntary commitment is a "massive  


                                                                                                                      On the  

curtailment of liberty" that cannot be imposed without due process protections. 


other hand, many other jurisdictions have allowed delays more substantial than Gabriel  



endured for an evaluation of a respondent and preparation for a commitment hearing. 


But even if we assume that the first and third factors favor Gabriel's argument, his due  


process claim must fail because he has not shown that the delay in this case created any  

risk of an erroneous deprivation of his liberty.  


                    In both the criminal and civil context, a litigant must show prejudice in  


                                                                                            In this case, Gabriel does  

order to establish a due process violation for excessive delay. 


not dispute that his hospitalization was based on the order of a neutral master who found  


probable cause to believe that Gabriel was mentally ill and that he was gravely disabled  


or presented a likelihood of causing serious harm to himself or others.  And there is  

          15       Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 181 (Alaska 2009).  

          16        Wetherhorn  v.  Alaska  Psychiatric  Inst., 156                     P.3d  371, 375-76           (Alaska  

2007) (quoting Humphrey v. Cady , 405 U.S. 504, 509 (1972)).  

          17        See, e.g., Project Release v. Prevost, 722 F.2d 960, 967, 974-75 (2d Cir.  

1983) (upholding statute providing for involuntary commitment of up to 60 days, with  


a hearing available within five days of demand); Curnow v. Yarbrough, 676 P.2d 1177,  


1182,   1185   (Colo.   1984)   (en   banc)   (upholding   statutory   scheme   requiring   no  


commitment hearing unless requested, but mandating a hearing within ten days of a  

request); N.M. Dep't of Health v. Compton , 34 P.3d 593, 598-600 (N.M. 2001) (finding  


no due process violation where statutory scheme required hearing within seven days of  


confinement and hearing did not occur until 14 days after respondent was detained).  

          18       Brandal v. State , Commercial Fisheries Entry Comm'n,128 P.3d 732, 740  

(Alaska 2006) ("[W]e have never held that delay alone, with no accompanying prejudice,  

constitutes a violation of the right to due process.") (internal citations omitted).  

                                                             -8-                                                        6886

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

likewise  no  dispute  that  the  superior  court  properly  found,  by  clear  and  convincing  


evidence, that Gabriel was mentally ill and gravely disabled. Gabriel does not allege that  


his ability to refute these findings was impeded by the delay of his commitment hearing.  


We therefore conclude that the delay in this case did not create any risk of an error in  

Gabriel's commitment.  

          C.        The Involuntary Medication Issue Is Moot.  


                    Gabriel argues that it was error for the superior court to affirm the master's  


conclusions that he lacked capacity to give and withhold informed consent, and that  

involuntary medication was in his best interests.  

                    We conclude that the involuntary medication issue is moot.  "[A] claim is  


moot if it is no longer a present, live controversy, and the party bringing the action would  


                                                                          Gabriel's  appeal  of  the  involuntary  

not  be  entitled  to  relief,  even  if  it  prevails." 

medication order is moot because the record indicates that the order lapsed when his  


commitment ended.  

                    Under the collateral consequences doctrine we may choose to decide a case  

that would otherwise be moot if the judgment carries "indirect consequences in addition  


to its direct force, either as a matter of legal rules or as a matter of practical effect."20  But  


a  person  must  first  be  involuntarily  committed  before  non-emergency  involuntary  


                                                          21  Thus, once the involuntary medication issue  

administration of medication can occur.  


arises,  the  respondent  has  already  been  involuntarily  committed,  and  the  collateral  


          19       In re Tracy C. , 249 P.3d 1085, 1090 (Alaska 2011) (internal citation and  

quotation marks omitted).  

          20       In re Joan K ., 273 P.3d 594, 597-98 (Alaska 2012).  

          21        See  Myers  v. Alaska Psychiatric Inst., 138 P.3d 238, 242 (Alaska 2006).  

                                                             -9-                                                        6886

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



consequences as to the precipitating incident have already attached.                                                   Gabriel argues that  


the involuntary medication order in this case carries additional collateral consequences  

for him, but he does not detail those consequences.  We conclude that the collateral  

consequences doctrine does not apply to this situation.  

                       We may also consider the merits of a claim that would otherwise be moot  

if the claim falls within the public interest exception to the mootness doctrine.23                                                              We  

examine  three  factors  to  determine  whether  the  public  interest  exception  applies:  


"(1) whether the disputed issues are capable of repetition, (2) whether the mootness  


doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and  


(3) whether  the  issues presented are so important to the public interest as to justify  

overriding the mootness doctrine."24  Gabriel argues that his challenge to the involuntary  

medication order satisfies the public interest exception.  

                       Gabriel  claims  that  this  situation  "was  not  unusual  and  could  recur."  


Gabriel claims this court should consider his challenge because "[t]rial courts currently  

have  little  guidance  as  to  what  information  is  legally  appropriate  to  consider  when  


deciding an individual's capacity."  In other words, Gabriel urges this court to examine  


the merits of his claim because future courts might benefit from the guidance an opinion  

            22         See Joan K., 273 P.3d at 598 ("We conclude that there are sufficient general   

collateral consequences . . . 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.")  (internal  citation  


            23         Tracy C., 249 P.3d at 1090.  

            24         Id. (internal quotation marks omitted).  

                                                                        -10-                                                                  6886

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

may  provide.    But  the  same  argument  could  be  made  for  every  moot  involuntary  

medication order, and indeed of every moot case in general.  


                      We conclude that we should not review the involuntary medication order  


because it has now expired. But we note that there is a serious issue concerning whether  


the superior court made adequate findings regarding the respondent's best interests.  In  

Myers v. Alaska Psychiatric Institute , we required a court permitting the involuntary  


administration of medication to make findings on several best interests factors:  (1) the  


extent and duration of changes in behavior patterns and mental activity caused by the  


treatment;  (2)  the  risks  of  adverse  side  effects;  (3)  the  experimental  nature  of  the  


treatment; (4) its acceptance by the medical community of the state;  and (5) the extent  


of intrusion into the patient's body and the pain associated with the treatment.                                                    

                      In this case, the master made findings on these factors when he issued his  


recommendation.    Gabriel  made  a  timely  objection  to  the  master's  findings,  so  the  


superior  court  was  required  to  address  the  issue  de  novo.                                       The  superior  court,  in  

reviewing the master's medication recommendation, discussed the conflicting testimony  


regarding Gabriel's competence.  But the court did not make specific findings on the best  


interest factors or expressly incorporate the master's findings on this issue.  We take this  


occasion to note that the superior court must expressly make or incorporate specific  

findings on each of these best interest factors in a case where involuntary medication is  



           25         138 P.3d at 252.  

           26         Alaska Civil Rule 53(d)(2)(B) states that "if any party files objections to [a           

master's] report, the court . . . must consider under a de novo standard of review all     

objections to findings of fact made or recommended in the report, and must rule on each  


                                                                    -11-                                                              6886

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


              We  AFFIRM   the  superior  court's  decision  granting  the  petition  for  

involuntary  commitment,  and  we  DISMISS  Gabriel's  appeal  of  the  involuntary  

medication order.  

                                           -12-                                     6886

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