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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 Mark V. (5/16/2014) sp-6911

In Re Necessity for the Hospitalization of Mark V. (5/16/2014) sp-6911

         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-14534  

                                                     )  

MARK V.                                              )        Superior Court No. 4FA-11-00612 PR  

                                                     )  

                                                     )       O P I N I O N  

                                                     )  

                                                     )       No. 6911 - May 16, 2014  

                                                     )  



                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.  



                  Appearances:  Marjorie  K.  Allard  and  Michael  Schwaiger,  

                  Assistant  Public  Defenders,  and  Quinlan  Steiner,  Public  

                  Defender,      Anchorage,        for   Appellant.         Ruth     Botstein,  

                  Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                  Geraghty, Attorney General, Juneau, for Appellee.  



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

                                                                    

                  Justices, and Eastaugh, Senior Justice.*  

                                                                       [Carpeneti, Justice,  

                  not participating.]  



                  EASTAUGH, Senior Justice.
  

                  STOWERS, Justice, with whom MAASSEN, Justice, joins, dissenting.
  



I.       INTRODUCTION  



                  In November 2011 the superior court entered a 30-day involuntary civil  



         *        Sitting  by  assignment  made  under  article  IV,  section  11  of  the  Alaska  



Constitution and Alaska Administrative Rule 23(a).  


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

commitment order for Mark V. after the court conducted an evidentiary hearing and  

                    

                                                                                                   1  Mark argues on  

found that Mark posed a "substantial risk . . . of harming others."    



appeal that the court clearly erred in so finding.  Because his period of commitment  



                               

under that order has expired and Mark was soon released from custody, his "weight of  



                                                                                        

the evidence" appeal is technically moot.  But he argues that the collateral consequences  



exception  to  the  mootness  doctrine  nonetheless  justifies  appellate  review  of  the  



November  2011  commitment  order.    The  circumstances  -  including  four  civil  



                    

commitment  orders  entered  against  Mark  earlier  in  2011  and  the  absence  of  any  



                                                      

indication that the November 2011 commitment will result in any additional adverse  



collateral consequences - convince us that the exception is not satisfied.  We therefore  



do not reach the merits of Mark's appeal and dismiss it as moot.  



II.       FACTS AND PROCEEDINGS  



                                                                                                          

                   Mark V. had a history of mental illness that led to entry of five earlier  



                                                                                                          

involuntary civil commitment orders - one in 2002 and four in 2011 - before entry of  

                                                                           2  The events leading to the disputed  

                                                                               

the November 2011 order that Mark challenges here. 



commitment  began  on  November  7,  2011,  when  Mark  arrived  in  Fairbanks  after  



                                                                                                               

traveling  from  Anchorage  by  taxicab  at  an  approximate  cost  of  $900.                                 Soon  after  



                                                       

arriving, Mark visited a bank, where his reportedly bizarre and loud behavior prompted  



                                                                                                                 

a bank teller to trigger the alarm.  Mark then went to a Fairbanks residence and had a  



verbal  altercation  with  an  occupant.    The  home  was  a  rental  property  belonging  to  



                                     

Mark's  family,  but  the  tenants  were  not  relatives  of  Mark.    Although  the  details  



                                               

surrounding the altercation are murky, Mark reportedly exhibited threatening behavior  



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



          2         The parties dispute the number of Mark's prior involuntary commitments.  



The  record  reflects  five  prior  commitment  orders,  including  four  orders  entered  in  

                                                                                                     

March, May, June, and September 2011.  



                                                             -2-                                                          6911  


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

toward a tenant, who then called the police.  The police took Mark to the Fairbanks  



Memorial Hospital mental health unit, where he was admitted.  



                   On November 8 two mental health professionals applied for an ex parte                 



order  authorizing  Mark's  hospitalization  for  an  evaluation.    Superior  Court  Judge  



                                               

Michael A. MacDonald granted the application the next day, ordered Mark's prompt  



evaluation, scheduled a hearing on the anticipated 30-day commitment petition, and  



appointed the Public Defender Agency to represent him.  



                                                

                   On November  10  a  psychiatrist and a psychologist filed a 30-day civil  



commitment petition alleging that Mark was mentally ill; they described facts supporting  



        

their allegations that he was gravely disabled and that he was likely to cause harm to  



                                                          

others.  Superior Court Judge Randy M. Olsen conducted the commitment hearing the  



                                           

same  day.    The  court  heard  testimony  from  the  same  psychologist  and  a  different  



psychiatrist;  they  both  diagnosed  Mark  as  having  some  form  of  schizophrenia  and  



bipolar disorder and testified that Mark posed a threat of harm to others if released.  



                   At the conclusion of the hearing, the superior court applied the clear and  



                               

convincing evidence standard and found that Mark was mentally ill and that as a result  



                              

of his mental illness Mark was likely to cause serious harm to others.  The court relied  



on  the  evidence  of  Mark's  recent  behavior,  including  evidence  that  he  threatened  a  



                                                                                   

physician, punched a staff member, and engaged in conduct that "rais[ed] such a conflict  



that people call[ed] 911."  The court ordered Mark committed to Alaska Psychiatric  



Institute (API) for a period not to exceed 30 days.  



                   Mark appeals.  



III.     STANDARD OF REVIEW  



                   We resolve issues of mootness using our independent judgment because,  



                                                          -3-                                                    6911
  


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

                                                                                                                                                        3  

                         

as a matter of judicial policy, applying the mootness doctrine presents a question of law. 



IV.         DISCUSSION  



                  

            A.          The Mootness Doctrine And Its Exceptions  



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



                                                                                                                                                        4  

                                                                                                              

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



                                    

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



                                                                                                                                                        5  

                                                         

commitment period has passed, subject to two exceptions: the public interest exception 



                                                                            6  

and the collateral consequences exception.    



                                                                                                                                   

                        Mark's appeal from the November 2011 order is technically moot because  



his period of commitment under that order has expired; the parties agree that he was  



released from custody.  But Mark contends that the collateral consequences exception  



applies to his appeal.  He also suggests that AS 47.30.765 guarantees, as a matter of  



right, an appeal from any commitment order.  



                                                                                                                                              

                        In its Brief of Appellee, the State initially argued that Mark's appeal is moot  



and  does  not  fall  within  a  recognized  exception  to  the  mootness  doctrine;  the  State  



            3           Ulmer v. Alaska Rest. & Beverage Ass'n                                 , 33 P.3d 773, 776 (Alaska 2001)   



(citing Kleven v. Yukon-Koyukuk Sch. Dist.                                  , 853 P.2d 518, 525 n.13 (Alaska 1993)); see  

also  In re Joan K. , 273 P.3d 594, 595-96 (Alaska 2012) (citing                                               In re Tracy C. , 249 P.3d  

 1085, 1089 (Alaska 2011)) (explaining that we use our independent judgment and "adopt   

the rule of law most persuasive in light of precedent, reason, and policy").  



            4  

                                                                                                                         

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

                                    

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

1167 (Alaska 2002)).  



            5           Id .  



            6  

                                                                                                               

                        In  re  Joan  K. ,  273  P.3d  at  597-98  (adopting  collateral  consequences  

                                                               

exception  to  mootness);  see  also  In  re  Jeffrey  E. ,  281  P.3d  84,  86  (Alaska  2012)  

(applying collateral consequences exception to mootness).  



                                                                          -4-                                                                    6911
  


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

therefore urged us to dismiss Mark's appeal as moot.                                             But at oral argument the State  



instead asked us to review the merits of some otherwise-moot commitment orders to  



provide more guidance to trial courts.  



            B.         The Collateral Consequences Exception Does Not Apply To This Case.  



                       1.          Framing the issue: In re Joan K.  



                       The collateral consequences exception permits courts to decide otherwise-    



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

                                                                                                                           7   In re Joan K.  

force, either as a matter of legal rules or as a matter of practical effect."                                                   



                                                                                                                                    8  

was an appeal from the appellant's first involuntary civil commitment order.   Because  

                                                                                           

her  commitment  period  had  ended,  Joan  K.'s  appeal  was  technically  moot.9                                                              We  

                                             



nonetheless  held  that  the  general  collateral  consequences  of  her  first  involuntary  



                                                                                                       

commitment order were sufficient to satisfy the collateral consequences exception to  



mootness, and that no particularized showing of specific collateral consequences was  



                                                      10  

needed to satisfy the exception.                           Joan K. argued that the consequences included social  



stigma, adverse employment restrictions, application in future legal proceedings, and  



                                                                             11  

restrictions on the right to possess firearms.                                   We did not specify when an individual  



                                                                                            

would be required to make a particularized showing of collateral consequences, but we  



                                                                                                                            

noted that "some number of prior involuntary commitment orders would likely eliminate  



the  possibility  of  additional  collateral  consequences,  precluding  the  [exception's]  



            7          In  re  Joan  K. ,  273  P.3d  at  597-98  (quoting Peter  A.  v.  State,  Dep't  of  



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



            8          Id. at 598.  



            9          Id. at 597.  



            10         Id. at 598.  



            11         Id. at 597.  



                                                                         -5-                                                                 6911
  


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

                   12  

application."          



                   More recently, in In re Jeffrey E. , we applied our holding in Joan K. to a  



                                                                                         13  

sufficiency-of-the-evidence challenge to a commitment order.                                 We noted in Jeffrey E.  



that evidence-based challenges to expired commitment orders are generally moot and  



                                                                                                14  

                                                                                                    But we held that  

will not be reviewed absent an exception to the mootness doctrine. 



the collateral consequences exception applied to Jeffrey's appeal because it was Jeffrey's  

                                                       



first involuntary commitment:  



                   Jeffrey  appeals  the  superior  court's  finding  that  he  was  

                   gravely  disabled.  He  does  not  appeal  the  mental  illness  

                   finding  or  the  finding  that  API  was  the  least  restrictive  

                   alternative.  Although Jeffrey was released from API shortly  

                                                                                  

                   after being committed and the issue he raises is moot under  

                   the standard established in Wetherhorn v. Alaska Psychiatric  

                                                                            

                                [15]  

                   Institute ,       because  this  was  Jeffrey's  first  involuntary  

                   commitment  we  consider  his  appeal  under  the  collateral  

                   consequences exception to mootness recently adopted in In  

                                                                          

                                                             [16] 

                   re Hospitalization of Joan K.  



                   Several  circumstances  persuade  us  that  the  collateral  consequences  



                                                               

exception does not apply to Mark's appeal. These circumstances include (1) the fact that  



                            

Mark's  challenge  is  exclusively  to  the  sufficiency  of  the  evidence  relied  on  by  the  



          12       Id. at 598.  



          13       281 P.3d 84, 86 (Alaska 2012) (considering merits of technically moot  



appeal of first involuntary commitment order).  



          14       Id. at 86 & n.5.  



          15       156 P.3d 371, 380 (Alaska 2007) (holding that an evidence-based challenge  



to an expired 30-day commitment order was moot and would not be reviewed absent an  

exception to the mootness doctrine).  



          16       In re Jeffrey E. , 281 P.3d at 86 (internal citations and footnotes omitted).  



                                                            -6-                                                      6911
  


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

superior court; (2) the complete absence of any indication of a procedural or fundamental  



flaw in the superior court proceedings; (3) the entry of four involuntary civil commitment  

                                                                            



orders in the eight months preceding entry of the order challenged here; and (4) the  



absence  of  any  indication  the  present  order  might  plausibly  cause  Mark  to  suffer  



incrementally significant collateral consequences.  



                   2.       Absence of specific collateral consequences  



                   Mark  asserts  that  the  adverse  collateral  consequences   resulting  from  



involuntary civil commitment orders do not end with entry of the first such order; he   



implies that adverse consequences should be presumed from the curtailment of liberty  



                                        

resulting from involuntary commitments.  Although he conceded at oral argument on  



                                             

appeal that there had been  no  particularized showing of collateral consequences, his  



reply  brief  asserts  that  social  stigma  and  the  likelihood  of  future  commitments  are  



                                                  

collateral consequences that grow with each additional commitment.  He also contends  



that commitment orders can affect future legal proceedings; he cites as an example the  



use  of  a  commitment  order  to  impeach  credibility.    Mark  also  argues  that  appellate  



                                                                                                          

review of involuntary commitment orders should occur whenever there is a possibility  



of collateral consequences.  



                   The State's appellate brief argues that the collateral consequences exception  



does  not  apply  to  Mark's  appeal  because,  given  his  recent  prior  commitments,  the  



November 2011 order brought no "easily cognizable additional collateral harms."  As  



                        

we  explain,  we  agree  with  that  contention.    Our  agreement  does  not  mean  that  the  



                                                                                      

collateral consequences exception can never apply when a new commitment order is  



entered.    But  we  are  unpersuaded  here  that  there  is  any  plausible  likelihood  that  



                                                                                  

additional collateral consequences could attach to Mark's November 2011 commitment  



                

order.  At least five prior commitment orders had been entered against Mark; four were  



very  recent,  having  been  entered  in  the  eight  months  preceding  entry  of  the  order  



                                                           -7-                                                     6911
  


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

challenged here.  Mark gives us no reason to think that any collateral consequences  



                                                                

potentially attributable to the November 2011 order were not equally attributable to the  



                                               17  

four most-recent prior orders.                     And he gives us no reason to think that the collateral  



consequences arising from the earlier 2011 orders had become inconsequential and that  



the November order therefore inflicted incrementally significant collateral consequences  



                                                                

on Mark.  He has not convinced us that the disputed order could have resulted in any  



                                                                     

additional collateral consequences.  We are also unconvinced that the mere possibility  



of  additional  but  unparticularized  collateral  consequences  automatically  justifies  



                                                                                                      

substantive review of every subsequent involuntary commitment order entered against  



a respondent.  



                                                  

                     Importantly, there has been no intimation that the commitment hearing was  



                                                                             18  

                                                                                               

procedurally or fundamentally flawed in any way.                                 Instead, Mark argues only that the  



                                                                                              

evidence  did  not  support  the  finding  the  superior  court  relied  on  in  entering  the  



commitment  order.    His  argument  really  seeks  a  reweighing  of  the  evidence.  His  



                                                                                                                 

substantive arguments therefore raise no issue that might justify departing from our usual  



                                     

approach to reviewing moot issues and our application of the collateral consequences  



           17        See  In re Joan K. , 273 P.3d at 598 ("[S]ome number of prior involuntary       



commitment  orders  would  likely  eliminate  the  possibility  of  additional  collateral  

consequences . . . ."); see also In re Jeffrey E., 281 P.3d at 86 (holding that collateral  

consequences exception applied because respondent had no prior commitment orders);  

                                                                                              

In re Alfred H.H. , 910 N.E.2d 74, 84 (Ill. 2009) (holding that collateral consequences  

exception did not apply because "[e]very collateral consequence that can be identified  

                                       

already existed as a result of respondent's [multiple] previous adjudications and felony  

                                                                   

conviction [for murder]").  



           18  

                                                                                                        

                     Cf. Wetherhorn, 156 P.3d at 375-76, 379-80 (internal quotation marks and  

citations omitted) (recognizing that involuntary commitment is a "massive curtailment  

of  liberty  that  cannot  be  accomplished  without  due  process  of  law"  and  addressing  

procedural due process challenges to 30-day commitment petition).  



                                                                 -8-                                                          6911
  


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

               19  

exception.         



                                                    

                   We conclude that the collateral consequences exception does not apply to  



this case.  



                   3.	       The  availability  of  an  alternative  statutory  remedy  under  

                             AS 47.30.850  



                                                   

                   At oral argument the State asserted that AS 47.30.850 provides a form of  



                                                                                   

alternative relief to respondents, such as Mark, who seek vacatur of commitment orders.  



Neither party cited this statute before oral argument.  



                   Because        the    potential      availability       of    alternative       relief    from      civil  



commitment orders could be pertinent to Mark's arguments that we should review the  



November  2011  order  despite  its  mootness,  we  have  reviewed  the  statute  to  decide  

whether it might be relevant to our mootness analysis.20  



                                                                                 

                   Alaska Statute 47.30.850 grants courts the authority to expunge or seal the  



          19       See In re Joan K., 273 P.3d at 597 ("We . . . do not consider overturning  



Wetherhorn's  holding  that  an  evidentiary-based  challenge  to  a  completed  30-day  

commitment generally is moot."); see also In re Jeffrey E. , 281 P.3d at 86 (recognizing  

                                                                                      

evidence-based  challenge  to  completed  commitment  to  be  moot,  but  nonetheless  

                                                                                                      

reviewing under collateral consequences exception because it was respondent's first  

                          

involuntary commitment).  



          20       The  availability  of  alternative  relief  ameliorating  an  order's  collateral  



consequences is potentially relevant to whether the collateral consequences exception  

applies in a particular case.  Peter A. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                 

Children's Servs., 146 P.3d 991 (Alaska 2006), is illustrative. We there assumed that the  

                                                                                               

collateral consequences flowing from an adverse adjudication order would have justified  

                                                                                         

Peter A.'s otherwise-moot appeal, had the State not successfully moved to dismiss the  

case  at  the  disposition  stage.    Id .  at  995-96.    Because  the  resulting  vacatur  of  the  

                                    

adjudication order avoided any collateral consequences to Peter, the exception did not  

prevent dismissal of his appeal as moot.  Id . at 996.  



                                                             -9-	                                                     6911
  


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

                                                                                                                     21  

                                                       

records  of  persons  who  have  been  subject  to  civil  commitment  proceedings.                                       We  



                                           

conclude  that  the  remedies  provided  by  AS  47.30.850  may  avert  many  of  the  most  



onerous   collateral   consequences   that   potentially   attach   to   an   involuntary   civil  



commitment order.  



                    Alaska Statute 47.30.850 was originally enacted in 1981 as part of a major  



                                                                                      22  

                                                                                          As originally enacted, the  

revision of Alaska's involuntary commitment legal regime. 



                                                                           

statute provided only the remedy of expungement, but in 1992 the statute was amended  



                                                                                 23  

                                                                                     The legislative history shows  

to allow court records to be sealed as well as expunged. 



                             

that the alternative remedy of sealing records was added to allay concerns regarding the  

unavailability of civil commitment records in subsequent, related criminal proceedings.24  



          21        AS 47.30.850 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.  



          22        See ch. 84,  1, SLA 1981, codified as amended at AS 47.30.655-.660 and  



47.30.670-.915.  



          23  

                                   

                    Compare ch. 84,  1, SLA 1981, with ch. 109,  11, SLA 1992.  



          24  

                                                               

                    During a legislative hearing, Senator Rick Halford expressed concern that  

                                                                                                                  

expunged civil commitment records would later be relevant, but unavailable, in related  

              

criminal proceedings.  Comments of Senator Rick Halford at 0:42, Hearing on Senate  

Bill (S.B.) 153 Before the Sen. Judiciary Comm., 17th Leg., 2d Sess. (Apr. 23, 1992).  

                                                                                                           (continued...)  



                                                             -10-                                                       6911
  


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

                   Alaska Statute 47.30.850 states that a respondent, following discharge from  



                                                      

a treatment facility or the issuance of a court order denying a commitment petition, "may  



at any time move to have all court records pertaining to the proceedings expunged,"  



                                                                              

provided any claims arising from the proceedings are waived.  If the required motion and  



full release are filed, the statute provides that "the court shall order the court records  



either  expunged  or  sealed,  whichever  the  court  considers  appropriate  under  the  



                       25  

circumstances."             



                                        

                    To  place  the  remedies  offered  by  AS  47.30.850  in  context,  it  is  worth  



                                                                                                     

reviewing the different levels of access to civil commitment records.  "Information and  



                                                                                                        

records obtained in the course of a screening investigation, evaluation, examination, or  



                                                    

treatment are confidential and are not public records, except as the requirements of a  

hearing  under  AS  47.30.660-47.30.915  may  necessitate  a  different  procedure."26  



Records that are expunged or sealed are subject to greater restriction than records that  



                                                        

are  merely  confidential.    Access  to  confidential  records  is  restricted  to  the  parties,  



                                                                                                                            27  

                                                                    

counsel, individuals with a written court order authorizing access, and court personnel. 



Sealed records are available only to the judge and "persons authorized by written order  



          24        (...continued)  



He requested that the bill be rewritten to address this concern,  id. at 0:46; when the  

Committee next met, the bill had been amended to include the option of sealing records.  

                                

Comments  of  Senator  Rick  Halford  at  0:32,  Hearing  on  S.B.  153  Before  the  Sen.  

                                                                                                      

Judiciary Comm., 17th Leg., 2d Sess. (Apr. 30, 1992); see also Committee Substitute for  

Senate Bill (C.S.S.B.) 153 (JUD), 17th Leg., 2d Sess. (1992).  



          25       AS 47.30.850.  



          26       AS 47.30.845.  



          27       Alaska Admin. R. 37.5(c)(4).  



                                                            -11-                                                       6911
  


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

                     28  

                                                                                                               

of the court."           The court may allow access to non-public information - including  



                                                                             29  

                                                                                 -  if  the  court  finds  that  "the  

information  designated  as  confidential  or  sealed 



                                  

requestor's interest in disclosure outweighs the potential harm to the person or interests  



                          30                                                               31 

                                                                                               

being protected."             The court rules do not define "expunge,"                        but according to Black's  

Law Dictionary , "expunge" means "[t]o erase or destroy."32  



                                                                                                             

                    Because the parties' briefs did not discuss the statute or its possible effect,  



                                                                                                        33  

                                                                                                             But the statute  

we offer no opinion about the full extent of relief the statute provides. 



          28        Alaska Admin. R. 37.5(c)(5).  



          29        Id.  



          30        Alaska Admin. R. 37.7(a). Relevant considerations include, but are not  



limited  to,  the  risk  of  injury  to  individuals,  individual  privacy  rights  and  interests,  

                                                   

proprietary business information, the deliberative process, and public safety.  Id.  



          31        The probate rules governing civil commitment proceedings contain the  



court rules' only reference to expunged civil commitment records.  See Alaska R. Prob.  

                                                             

P.  1(b) (stating scope of rules governs "mental commitments under AS 47.30").  The  

                                                                         

probate rules require that indices be kept for commitments. Alaska R. Prob. P. 3(d).  The  

                                                                                                                 

index  of  commitments  is  confidential  and  the  index  of  commitments  for  which  the  

records have been expunged under AS 47.30.850 is kept by number.  Alaska R. Prob.  

                              

P. 3(d), (g).  



          32        BLACK 'S LAW DICTIONARY 621 (8th ed. 2004).  



          33        We  have  addressed  the  expungement  remedy  in  context  of  a  court's  



                                         

inherent power to expunge criminal records.  See Farmer v. State, 235 P.3d 1012 (Alaska  

                                                                                                       

2010); Journey v. State , 895 P.2d 955 (Alaska 1995).  Those cases are distinguishable  

from Mark's situation because the legislature explicitly authorized expungement in the  

civil commitment context.  Nonetheless, our prior discussions of expungement illuminate  

some  potentially  problematic  effects  of  that  remedy.    We  expressed  concern  that  

                                                                

expungement of records may be too drastic in some contexts.  See Farmer, 235 P.3d at  

                                                                                                                  

 1016 (indicating that expungement of records would remove collateral consequences of  

                                                                      

conviction and was therefore not an appropriate remedy); Journey , 895 P.2d at 957 n.6  

                                              

                                                                                                              (continued...)  



                                                              -12-                                                         6911
  


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

does confirm the availability of two remedies - expungement and sealing -  that give  

                                               



respondents some ability to ameliorate the potentially adverse effects Mark identifies.  



                   

It therefore supports our view that there is no reason to substantively review Mark's  



now-moot civil commitment appeal.  



                    4.       The sufficiency of existing mootness exceptions  



                                                                                                    

                    There is no question that involuntary civil commitment can severely affect  



the  civil  rights  of  the  committed  individual.    And  there  is  certainly  an  institutional  



                                                                                                                    

interest in ensuring that each involuntary civil commitment is justified.  But we are not  



                        

persuaded  that  these  factors  require  full  appellate  review  of  every  involuntary  civil  



                                                                                                   

commitment order, including even those orders whose periods of commitment have  



                                    

expired.    In  our  view,  the  existing  recognized  exceptions  to  the  mootness  doctrine  



adequately protect the interests of involuntary civil commitment respondents.  Those  



                  

exceptions  will  permit  substantive  appellate  review  of  those  orders  when  review  is  



                                                                                                       

justified, despite their technical mootness.  Because no such exception applies here, we  



decline to review Mark's November 2011 commitment order.  



          C.       Alaska Statute 47.30.765 Does Not Supersede The Mootness Doctrine.  



                                                                                                 

                   Alaska Statute 47.30.765 gives respondents the right to an appeal from an  

                                                 34  Although Mark's briefs did not focus on a statutory  

order of involuntary commitment. 



right to appeal, they referred to the statute to support his argument that we should reach  

                                                                                                       



the merits of his appeal.  He expanded on this contention at oral argument, where he  



asserted  that  the  abbreviated  nature  of  commitment  hearings  warrants  review  at  the  



          33        (...continued)  



(noting that concerns regarding employer access to criminal history could be satisfied by  

                                                                                                              

"less drastic measures" than expungement, such as sealing records).  



          34       AS 47.30.765 provides that "[t]he respondent has the right to an appeal  



from an order of involuntary commitment."  



                                                            -13-                                                      6911
  


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

appellate level.  In Joan K . we declined to reach an equivalent argument that relied on  



                                                                                              

AS  47.30.765  because  we  concluded  that  the  collateral  consequences  exception  



             35  

                                            

applied.           We  expressed  skepticism,  however,  about  interpreting  the  statute  to  



                                                                                                       36  

completely override the judicial policy of not deciding moot cases.                                         



                     Other statutes providing for rights of appeal equivalent to those provided  



                                                                                   37  

                                                                                                                    

by  AS  47.30.765  are  scattered  throughout  Title  47                               and  elsewhere  in  the  Alaska  



             38  

 Statutes.        The existence of these statutes has not in practice compelled us to review  



                                      39  

                                                                                                          

otherwise-moot  appeals.                     Mootness  is  a  judicial  doctrine  that  is  intended  to  avoid  



           35        In re Joan K. , 273 P.3d 594, 597 & n.12 (Alaska 2012).  



           36        Id.  at   597  ("Joan's  interpretation  of  [AS  47.30.765]  as  overriding  the  



judicial policy of not deciding moot cases appears overbroad . . . .").  



           37        For  example,  AS  47.10.080(i)  provides  that  a  parent  "may  appeal  a  



judgment or order, or the stay, modification, setting aside, revocation, or enlargement of  

                                                

a judgment or order issued by the court [in a Children in Need of Aid proceeding]."  



           38  

                                                                                                                        

                     See, e.g., AS 22.05.010(c) ("A decision of the superior court on an appeal  

from an administrative agency decision may be appealed to the supreme court as a matter  

of right."); AS 22.07.020(d) ("An appeal to the court of appeals is a matter of right in all  

                                                                                                                   

actions and proceedings within its jurisdiction . . . .").  



           39  

                                                                                  

                     See,  e.g.,  Peter  A.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

                                                                                                                

 Children's  Servs.,  146  P.3d  991,  996  (Alaska  2006)  (dismissing  as  moot  father's  

                                                                          

challenge to order adjudicating his children in need of aid); Fairbanks Fire Fighters  

                                                               

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

as moot appeal from administrative decision);  cf. Sweezey v. State, 167 P.3d 79, 80  

(Alaska App. 2007) (dismissing as moot claim that sentencing judge erroneously rejected  

proposed  mitigating  factor);  Allen  v.  State ,  56  P.3d  683,  685  (Alaska  App.  2002)  

                

(holding that "when a judge's authority to impose a particular sentence does not rest on  

                                                                                                

the  judge's  findings  concerning  contested  aggravating  or  mitigating  factors,  any  

challenges to the judge's findings are moot").  



                                                                -14-                                                         6911
  


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

                                                                                                                        40 

                                                                                  

needlessly deciding issues in cases in which there is no actual controversy                                                and which  



                                                                             41  

would  effectively  result  in  advisory  opinions.                                 We  do  not  read  AS  47.30.765  as  



requiring appellate review of a moot civil commitment dispute.  We express no opinion  



                                                                                                                           

about whether a statute could validly require the courts of this state to review moot issues  



                                                                                                             42  

or whether any such statute would violate the separation of powers.                                               



           D.         We Decline To Vacate The Commitment Order.  



                      Finally,  Mark  contends  that  even  if  we  conclude  that  the  collateral  



                                                       

consequences exception does not apply, we should nonetheless vacate the commitment  



                                    

order.  He argues that vacatur serves as a safeguard against the possibility that collateral  



                                                                                                                  

consequences did, in fact, attach to the commitment order.  The State did not brief this  



issue, but at oral argument it opposed routine vacatur in moot commitment-order appeals.  



                      Having concluded that the theoretical possibility of collateral consequences  



does not itself justify review of this moot appeal, we are likewise unconvinced that there  



           40         Ulmer v. Alaska Rest. & Beverage Ass'n                           , 33 P.3d 773, 776 (Alaska 2001)     



("A claim will be deemed moot if it has lost its character as a present, live controversy."      

(quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998))).  



           41         See Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985) (dismissing as  



moot challenge to legislative council contract because legislative session was over and  

the contract at issue had been fully performed, so opinion by court "would be advisory  

                                                                                                             

only").  



           42         We  have  consistently  adhered  to  the  principle  that  "courts  should  not  



                           

resolve abstract questions or issue advisory opinions."  Gilbert M. v. State, 139 P.3d 581,  

                                                                                                                        

586 (Alaska 2006) (quoting  Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska  

                                                                             

 1987)).    "The  separation  of  powers  doctrine  limits  the  authority  of  each  branch  to  

                                                                                 

interfere in the powers that have been delegated to the other branches."  Alaska Pub.  

Interest Research Grp. v. State , 167 P.3d 27, 35 (Alaska 2007) (citing Abood v. League  

of Women Voters, 743 P.2d 333, 338 (Alaska 1987)).  



                                                                   -15-                                                             6911
  


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

                                                         43  

                                                                    

is any reason to vacate the order below.                     We also note that Mark has referred us to no  



                                             

reported cases in which courts both dismissed a commitment-order appeal as moot and  



                                                 44  

vacated the underlying judgment.                     We therefore decline to vacate the commitment  



order.  



V.        CONCLUSION  



                   For these reasons, we DISMISS the appeal as moot.  



          43       Although we are not persuaded it would be appropriate to vacate the order  



in  this  case,  we  express  no  opinion  about  whether  vacatur  might  nonetheless  be  

                                                                                

appropriate under circumstances not present here.  



          44       Mark's reliance on Peter A. v. State , 146 P.3d 991 (Alaska 2006), and City  



of Valdez v. Gavora, Inc., 692 P.2d 959 (Alaska 1984), is unavailing.  Although we  

                                                                                    

dismissed both appeals as moot and vacated the underlying judgments, neither of those  

                                                                                      

cases is persuasive in the context of a civil commitment-order appeal.  In Peter A. the  

                                                                                                            

prevailing party voluntarily mooted the case. 146 P.3d at 995.  In  City of Valdez the  

parties reached a settlement agreement that effectively nullified the challenged judgment.  

692 P.2d at 960.  Neither case bears on the issue presented here: whether we should  

                                                                                                 

routinely vacate involuntary civil commitment orders in moot appeals.  



                                                           -16-                                                      6911
  


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

 STOWERS, Justice, with whom MAASSEN, Justice, joins, dissenting.  



                     As  the  court  explains,  the  collateral  consequences  exception  to  the  



                                                          

mootness doctrine requires this court to decide otherwise-moot cases "when a judgment  



                                                                                                                           

may carry indirect consequences in addition to its direct force, either as a matter of legal  



                                                           45  

                                                               But necessarily determining when a judgment  

rules or as a matter of practical effect." 



may carry such indirect consequences for the respondent, or what those consequences  



may be, requires us to investigate the claim before us and find it unworthy of formal  



                                               46  

judicial review in its entirety.                   I find this approach deeply troubling.  I continue to  



believe this court should accept every appeal of an order of involuntary commitment in  



order  to  be  faithful  to  a  citizen's  right  to  appeal  as  promised  by  our  legislature  in  



                       47  

                                                                                                 

AS 47.30.765,             and to honor the citizen's right to due process of law given the massive  

                                               48   Significantly, at oral argument the State agreed that  

                                                                                                                    

curtailment of liberty at issue.  



every  commitment  carries  some  collateral  consequences  to  the  respondent's  liberty  

                                                                                                



interests and asked us to review the merits of some otherwise-moot commitment orders  

                                                                                                        



to provide guidance to the trial courts.  I would grant the State's request to review the  



           45        Opinion at 5, quoting            In re Joan K. , 273 P.3d 594, 597-98 (Alaska 2012)   



(quoting Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                        , 146  

P.3d 991, 994-95 (Alaska 2006)).  



           46        For   example,   the   court   believes   M.V.'s   recent   prior   commitments  



effectively  swallow  any  conceivable  collateral  consequences  stemming  from  the  

November   2011   order,   and   the   mere   possibility   of   unparticularized   collateral  

consequences of the last order cannot automatically justify substantive review of every  

                                                                                            

order brought before this court.  



           47        AS 47.30.765 provides that "[t]he respondent has the right to an appeal  



from an order of involuntary commitment."  



           48        See In re Joan K., 273 P.3d at 608 (Stowers, J., dissenting).  



                                                                -17-                                                         6911
  


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

                                                                                                  49  

merits of otherwise-moot commitment orders.                                                            I therefore respectfully dissent.  



                                                                                                                                                       

                              Under  our  traditional  mootness  analysis,  an  appeal  of  an  involuntary  



commitment order cannot defeat the judicially created doctrine of mootness unless one  



                                                                                            50 

                                                                                                                       

of two judicially created exceptions applies.                                                    While the court believes these exceptions  



adequately  protect  the  interests  of  involuntary  commitment  respondents  to  "permit  



                                                                                                                                                             

substantive  appellate  review  of  those  orders  when  review  is  justified,"  in  my  view,  



simply determining whether to apply the collateral consequences exception itself in this  



                  

context requires quasi-substantive appellate review, thereby defeating the interests of  



                                                                                                                                                                                    51  

                                                                        

expediency and judicial economy that mootness traditionally promotes and safeguards. 



                                                                        

                            Here, the court goes through a detailed, four-part analysis spanning several  



fact-laden pages to determine that there is no reason to substantively review M.V.'s  



now-moot civil commitment order.  In other words, in order to build a sufficient record  



                           

to  properly  litigate  the  collateral  consequences  exception,  the  State  must  compile  a  



thorough  record  of  prior  commitment  proceedings.    But  the  State  conceded  at  oral  



argument that when "an individual has prior commitments in a remote part of the state  



                                                                                                                             

or out of state, those records might not be available at all."  And the expedited nature of  



these proceedings leaves little time for the formal discovery required to convince the  



                                                    

court there will or won't be collateral consequences resulting from the order.  Even if the  



              49            The State also suggested in oral argument that deciding these cases on the                                                         



merits would not result in a flood of appeals because the State is "seeing . . . a very small   

number of appeals and . . . that would continue to be the case if individuals knew they     

had to have something on the merits in order to win."  



              50  

                                                                                         

                            See In re Joan K. , 273 P.3d at 597-98 (adopting collateral consequences  

                                                                                                                                          

exception to mootness);  Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 380-81  

(Alaska 2007) (adopting public interest exception to mootness).  



              51  

                                                                                

                            Honig v. Doe , 484 U.S. 305, 330-32 (1988) (Rehnquist, C.J., concurring)  

(discussing the practicalities and prudential considerations of the doctrine).  



                                                                                       -18-                                                                                  6911
  


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

records were available, the State noted that "we don't want to see these proceedings  



become a parade of someone's past misdeeds just to build a record on the collateral  



                                

consequences issue, because that might well be prejudicial to the individual."  I agree.  



                                

                    Alaska Statute 47.30.765 plainly reflects the legislature's policy decision  



        

that a person who has been ordered to be involuntarily committed "has" - not "may  



                                                                                                                      

have" - a right to appeal that order:  a "respondent has the right to an appeal from an  



                                                                

order of involuntary commitment."  That the court identifies other cases where in the  



presence  of  similar  appeal-as-of-right  language  the  court  has  applied  the  mootness  



doctrine only begs the question; more importantly, it ignores the practical reality that in  



                                                                                              

every case of involuntary commitment, the 30-day commitment order expires prior to the  

                                 52  In these instances "the citizen's liberty has been alleged to have  

                                                                       

ripeness of the appeal. 



been wrongfully taken by court process," and so the court "should afford the citizen the  

                                                



opportunity to prove the error and, if proven, obtain judicial acknowledgment that the  

                    

order was erroneously issued."53  "The injury inflicted by an erroneously issued order of  



involuntary commitment 'lives' until the wrong is righted."54  



                    While I appreciate the court's identification of AS 47.30.850 as a possible  

                                                                                                



alternative ground of relief to avert "many of the most onerous collateral consequences  

                                                                                  



that potentially attach to an involuntary civil commitment order," I submit that the most  

                                                                                                                      



onerous  consequence  of  an  involuntary  civil  commitment  order  may  in  fact  be  the  



absence of a meaningful appeal.  Under this court's current application of mootness in  

                     



involuntary commitment proceedings, the erroneous issuance of an order curtailing a  



fundamental liberty interest remains a distinct possibility.  



          52        In re Joan K. , 273 P.3d at 607 (Stowers, J., dissenting).  



          53        Id .  



          54        Id . at 608.  



                                                             -19-                                                            6911  


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

                                                                                                    

                    But even if one were to disagree with my opinion that the court should  



                                                                                            

accept  every appeal of an order of involuntary commitment, there are other alternatives  



far superior to this court's current approach.  One such alternative is the one adopted in  



                                                                               

Minnesota:  a rebuttable presumption that there will be collateral consequences from an  



involuntary  commitment  order  that  precludes  mootness  where  "real  and  substantial  



                                                       55  

disabilities" result from a judgment.                      As explained by the Minnesota Supreme Court,  



                                                                      

"[I]f 'real and substantial' disabilities attach to a judgment, we do not require actual  



                                                                                                          

evidence of collateral consequences but presume such consequences will result. . . .  A  



                                                                                                                        

party may rebut this presumption of collateral consequences only by showing 'there is  



                                                                                           

no possibility that any collateral legal consequences will be imposed on the basis of the  



                                        56  

                                            In this scenario, the State has the burden of rebutting the  

challenged [judgment].' " 



                                                                                                        

presumption, and, if it fails, the case proceeds to the appellate court on the merits.  The  



                                                                                        

State conceded at oral argument this "would be a practical way to go" because "it [takes]  



so many more of our resources and the court's resources to adjudicate the collateral  



consequences issue than it would be just to decide the merits of M.V.'s appeal."  I agree  



with the State and remain mystified why the court persists in failing to recognize and  



                                       

give real meaning to the great liberty interests at stake in cases where Alaskan citizens  

are involuntarily committed to a mental institution.  Consequently, I must dissent.57  



          55        In re McCaskill , 603 N.W.2d 326, 329 (Minn. 1999) (internal quotation   



marks omitted).  



          56        Id .  (second alteration in original, citations omitted).  



          57        Notwithstanding the court's detailed analysis of M.V.'s case, it did not  

                                                                                                

reach the merits of whether there was sufficient evidence to support the superior court's  

                                                                                                       

issuance of the commitment order.   I also do not reach that issue because, given the  

                                                         

nature of the court's decision, I am most concerned about M.V.'s and other respondents'  

                                                             

rights to appeal, and have no reason to examine the merits.  



                                                              -20-                                                             6911  

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