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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 Heather R. (1/29/2016) sp-7078

In Re Necessity for the Hospitalization of Heather R. (1/29/2016) sp-7078

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

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                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



In  the  Matter  of  the  Necessity	                               )  

for  the  Hospitalization  of	                                     )     Supreme  Court  No.  S-15793  

                                                                   )  

                                                                                                                                   

HEATHER R.	                                                        )     Superior Court No.  3AN-14-02936 PR  

                                                                   )  

                                                                   )                         

                                                                         O P I N I O N  

                                                                   )  

                                                                                                               

                                                                   )     No. 7078 - January 29, 2016  

                                                                   )  



                                                                                                           

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

                                                                                           

                     Judicial District, Anchorage, Paul E. Olson, Judge.  



                                                                                                            

                     Appearances:               James   B.         Gottstein,   Law   Project                 for  

                                                                                                                

                     Psychiatric Rights, Inc., Anchorage, for Appellant. Robert H.  

                                                                                                               

                     Schmidt, Law Offices of Robert Schmidt, PC, Anchorage, for  

                                                                                                   

                     Appellee.             Laura       Fox,       Assistant        Attorney          General,  

                                                                                                    

                     Anchorage,  and  Craig  W.  Richards,  Attorney  General,  

                                                                             

                     Juneau, for Amicus Curiae State of Alaska.  



                                                                                                       

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

                                                                      

                     Justices. [Winfree, Justice, not participating.]  



                                       

                     BOLGER, Justice.  



I.        INTRODUCTION  



                                                                                                                                   

                     Severalmembers ofacondominiumhomeowners associationpetitionedthe  



                                                                                                                                    

superior  court to  order  a woman  who  owned a condominium in  the association  to  



                                                                                                                        

undergo an involuntary 72-hour psychiatric examination. After conducting a statutorily  



                                                                                                                                   

required ex parte screening investigation, which did not include an interview with the  


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

woman in question, the superior court master determined that there was probable cause                                                                                                                                        



to believe that she was mentally ill and presented a likelihood of serious harm to others.                                                                                                                                                     



The woman now appeals the evaluation order, claiming that the ex parte investigation                                                                                                                     



violated   due   process   and   that   the   master   failed   to   properly   conduct   the   statutorily  



required screening investigation. Although this appeal is technically moot, we reach the                                                                                                                                            



merits of these claims under the public interest exception. We vacate the evaluation order                                                                                                                                    



because the superior court master failed to conduct the interview as part of the screening                                                                                                                        



investigation required by statute; we do not reach the due process question.                                                                                                         



II.               FACTS AND PROCEEDINGS                    



                                     On   December   5,   2014,  a   petition   was   filed   on   behalf   of   the   Seacliff  



                                                                                                                                                                                                  1  

                                                                                                                                                                                                                                         

Condominium Association (Seacliff) for an order requiring Heather R.,                                                                                                                                the owner of a  



                                                                                                                                                                                                               

condominium in Seacliff, to undergo an involuntary 72-hour psychiatric evaluation  



                                                                       2  

                                                                                                                                                                                                                                         

pursuant to AS 47.30.700.                                                   The petition alleged that Heather was a threat to "herself . . .  



                                                                                                                                                                                                                         

and her neighbors" based on "[y]ears of confrontation, threats, aberrant and widely  



                                                                                                                                                                                                                    

swinging behavior suggesting drug use," including "taking pictures inside people's  



                                                                                                                                                                                                                    

houses, inability to have normal social interactions, [and] lying [in] wait to confront  



                                  

neighbors."  



                                                                                                                                                                                              

                                    Later that day a magistrate judge, acting in the capacity of superior court  



                                                                                                                                                                                                                          

master, held an ex parte evidentiary hearing on the issue of probable cause.  The master  



                                                                                                                                                                                                                                

heard  testimony  on  Heather's  behavior  from  Seacliff's  property  manager  and  four  



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



                  2                 See AS 47.30.700(a) (authorizing an ex parte order requiring respondent  



to  undergo  psychiatric  evaluation  if  the  court  finds  "probable  cause  to  believe  the  

                                                                                                                                                                                                                                   

respondent is mentally ill and that condition causes the respondent to be gravely disabled  

                                                                                                                                                                                                                      

or to present a likelihood of serious harm to self or others"); AS 47.30.715 (limiting the  

                                                                                                                                                                                                                                    

time a respondent can be held for emergency evaluation to 72 hours).  

                                                                                                                                                                                                



                                                                                                                  -2-                                                                                                          7078
  


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

 Seacliff residents. At the conclusion of the hearing, the master determined that there was                                                                                                                                                        



probable cause to believe (1) Heather had a mental illness that was "negatively affecting                                                                                                                                           



her ability to control her actions" and (2) this presented "a likelihood of harm to other   



people."  The master recommended ordering involuntary hospitalization for a 72-hour     



psychiatric   evaluation.     The   superior   court   subsequently   adopted   the   master's  



recommendation.     Heather   was   then   taken   to   the   Alaska   Psychiatric   Institute   for  



evaluation,   but   she   was   discharged   within   72   hours   because   medical   personnel  



determined she did not meet the criteria for continued hospitalization or commitment.                                                                                                                                                                        



                                       Heather appealstheevaluation                                                             order. Sheargues                                    thattheorder                          violated due  



process under the U.S. and Alaska Constitutions and that the master failed to conduct a                                                                                                                                                                    



statutorily required screening investigation prior to issuing the order.                                                                                                                 



III.                STANDARD OF REVIEW                                     



                                       This court applies its independent judgment to questions of law, which                                                                                                                                                    

                                                                         3  constitutional questions,4  and statutory construction.5                                                                                                        When  

include mootness issues,                                                                                                                                                                                                                   



reviewing questions of law, this court adopts "the rule of law most persuasive in light of  

                                                                                                                                                                                                                                                        

precedent, reason, and policy."6  

                                                                                               



                    3                   Clark v. State, Dep't of Corr.                                                        , 156 P.3d 384, 386 (Alaska 2007).                                                  



                    4                   Garibay v. State, Dep't of Admin., Div. of Motor Vehicles, 341 P.3d 446,  

                                                                                                                                                                                                                                                 

448 (Alaska 2014) (quoting Alvarez v. State, Dep't of Admin., Div. of Motor Vehicles ,  

                                                                                                                                                                                                       

249 P.3d 286, 290-91 (Alaska 2011)).  

                                                                                           



                    5                  Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 279  

                                                                                                                                                                                                                                                  

(Alaska 2015).  

                         



                    6                  Nunamta Aulukestai v. State, Dep't of Natural Res., 351 P.3d 1041, 1052  

                                                                                                                                                                                                                                               

(Alaska 2015) (quoting J.P. v. Anchorage Sch. Dist., 260 P.3d 285, 289 (Alaska 2011))  

                                                                                                                                                                                                                                          

(internal quotation marks omitted).  

                                                                            



                                                                                                                           -3-                                                                                                                 7078
  


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

IV.	        DISCUSSION  



                                                                                                                                                 

            A.	         Although  Heather's  Appeal  Is  Now  Moot,  We  Apply  The  Public  

                                                                                                                                       

                        Interest Exception To Reach The Merits Of Her Claims.  



                                                                                                                                                     

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



                                                                                                                                 7  

                                                                                                                                    

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



                                                                                                                          8  

                                                                                                                                                       

evaluation orders are moot after the commitment period has expired.                                                          However, we will  



                                                                                                                                             

consider a moot claim "if it falls within the public interest exception to the mootness  



                  9  

                                                                                                                                                

doctrine."              We  consider  three  factors  in  determining  whether  the  public  interest  



                                                                                                                                                        

exception applies to an otherwise moot claim: "(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  



                                                                                                                                            10  

                                                                                                                                                        

important to the public interest as to justify overriding the mootness doctrine."                                                               No one  



                                                                                                                                                         

individual factor is dispositive; "rather, we use our discretion to determine whether the  



                                                                                                                                             11  

                                                                                                                     

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



                                                                                                                                                

                        We recently applied the public interest exception to another due process  



                                                                                                                                                          

claim arising from an ex parte 72-hour involuntary evaluation order.  In In re Daniel G.  



we concluded that all three factors considered in the public interest exception analysis  



            7            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)) (internal quotation marks omitted).                                                 



            8           Id .  



            9           Id .  



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

                                                                                                                                                      

532, 536 (Alaska 2005)) (internal quotation marks omitted).  

                                                                                                                



            11          In re Daniel G., 320 P.3d 262, 267 (Alaska 2014) (quoting Fairbanks Fire  

                                                                                                                                                       

Fighters Ass'n , 48 P.3d at 1168).  

                                                 



                                                                            -4-	                                                                    7078
  


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

                                                                                                               12  

weighed in favor of reviewing the petitioner's claims.                                                              First, the disputed issues were                     



capable of repetition because they did "not depend heavily on [the petitioner's] unique                                                                              



facts"   and   would   "arise[]   every   time   that   an   evaluation   petition   is   filed   under  

                                       13     Second, "due process challenges to evaluation orders . . . will  

AS 47.30.710(b)."                                                                                                                                                      



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

                                                                                                                                                                           

have long since expired before an appeal can be heard."14                                                                   And third, "the scope and  

                                                                                                                                                                           



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

                                                                                                                                                                              

members of the public" were issues of significant importance to the public interest.15  

                                                                                                                                                           



                           All of these factors similarly favor review here, and Heather's statutory  

                                                                                                                                                                



claim is sufficiently distinct from that in Daniel G. to warrant separate review.  

                                                                                                                                                                   



              B.	           The   Screening   Investigation   Statute   Required   The   Master   To  

                                                                                                                                                                          

                            Interview Heather If Reasonably Possible.  

                                                                                                      



              Heather argues that the master violated AS 47.30.700 because he failed to conduct  

                                                                                                                                                                   

the required screening investigation before he issued the evaluation order.16  

                                                                                                                                                                             

                                                                                                                                                          Because the  



              12	          Id . at 267-68.     



              13           Id . at 268.           An evaluation petition filed under AS 47.30.710(b), contested                                                



in In re Daniel G., is nearly identical to the petition under AS 47.30.700(a), contested  

                                                                                                                                                               

here, except that the former must be sought by a mental health professional, while the                                                                                      

latter can be sought by "any adult."                                        Compare  AS 47.30.710(b) ("[T]he mental health                                            

professional   shall   apply   for   an   ex   parte   order   authorizing   hospitalization   for  

                                                                                                                                                                          

evaluation."), with AS 47.30.700(a) ("Upon petition of any adult," a judge may issue an  

                                                                                                                                                                              

ex parte order under qualifying circumstances).  

                                                                  



              14           In re Daniel G., 320 P.3d at 268.  

                                                                                       



              15           Id .  



              16           We recognize that  "an issue raised  for the first time  in  a reply brief  is  

                                                                                                                                                                               

deemed to have been waived."  Maines v. Kenworth Alaska, Inc.,  155 P.3d 318, 326  

                                                                                                                                                                

(Alaska 2007). However, while Heather did not explicitly argue until her reply brief that  

                                                                                                                                                                           

                                                                                                                                                       (continued...)  



                                                                                      -5-	                                                                              7078
  


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

master failed to interview Heather as part of the screening investigation, in the absence                                                                   



of any indication that it was not reasonably possible to do so, we agree that the master                                                               

failed to properly conduct the screening investigation required by AS 47.30.700.                                                                                17  



                                                                                                                                                        

                          Alaska Statute 47.30.700 requires a superior court to "conduct a screening  



                                                                                                                                                                     

investigation  or  direct  a  local  mental  health  professional  [to  conduct  such  an  



                                                                                                                                                                        18  

                                                                                                                                                                             

                                             

investigation]" before it may issue an ex parte 72-hour involuntary evaluation order. 



                                                                                           

The statute defines "screening investigation" as  



                                                                                                                                   

                          the investigation and review of facts that have been alleged  

                                                                                                                              

                          to warrant emergency examination or treatment, including  

                                                                                                                                        

                          interviews with the persons making the allegations, any other  

                                                                                                                                          

                           significant  witnesses  who  can  readily  be  contacted  for  

                                                                                                                                          

                          interviews,   and,   if   possible,   the   respondent,   and   an  

                                                                                                                             

                          investigation and evaluation of the reliability and credibility  

                                                                                                                                          [19]  

                                                                                                                    

                           of persons providing information or making allegations. 



             16            (...continued)  



                                                                                                                                                              

the hearing did not meet the statutory definition of a screening investigation, we believe  

                                                                                                                                                            

that she adequately preserved this issue for our review on appeal by raising a general  

                                                                                                                                                             

challenge to the screening investigation in her initial brief.  While she did not explain  

                                                                                                                                                  

until her reply brief why the hearing should not be considered a screening investigation  

                                                                                                                                                                 

as defined by AS 47.30.915(19), her opening brief sufficiently stated her general claim  

                                                                                                                                                          

that the master did not hold a screening investigation that conformed with statutory  

                                                                                                                                                      

requirements.  Cf. id. at 327 (holding that a claim raised very generally in the appellant's  

                                                                                                                                                            

opening brief and then stated more precisely in the reply brief was not waived). Further,  

                                                                                                                                                                        

Heather's argument in her reply brief responds to the State's argument that "the facts of  

                                                                                                                                   

a particular case" dictate what is required for a proper "screening investigation."  



             17           Because we vacate the evaluation order on this basis, we do not address the  

                                                                                                                                                                      

other grounds that Heather raises in her brief for vacating the order.  

                                                                                                                                        



             18           AS 47.30.700(a).  

                                                               



             19           AS 47.30.915(19) (emphasis added).  

                                                                                     



                                                                                   -6-                                                                           7078
  


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

                            This  definition   implies   that   a   screening   investigation   should   omit  an  



interview   with   the   respondent   only   if   such   an   interview   would   not   be   reasonably  



possible.     For   instance,   such   an   interview   may   not   be   reasonably   possible   if   the  



respondent   is   incapacitated   or   unwilling   to  be   interviewed.     However,   there   is   no  



indication in the record before us that the master made any attempt to interview Heather                                                                             

                                                                                                                                                              20    Had the  

or to request a mental health professional to conduct a screening interview.                                                                                                   



master made a finding that such an interview was not reasonably possible, our analysis  

                                                                                                                                                                     



likely would change. But the master violated AS 47.30.700 because the master failed to  

                                                                                                                                                                                  



interview Heather without any indication that such an interview was not reasonably  

                                                                                                                                                              



possible.  



                            Further,  this  failure  to  interview  Heather  as  part  of  the  screening  

                                                                                                                                                                

                                                                                21    The evidence presented to the master at the  

investigation was not harmless error.                                                                                                                                         

                                                                    



hearing was at best only minimally sufficient to support the master's probable cause  

                                                                                                                                                                         



finding.   The master found that the testimony about Heather's bizarre behavior was  

                                                                                                                                                                             



sufficient to suggest that she suffered from mental illness.  But there was no evidence or  

                                                                                                                                                                                 



testimony  offered  at  the  hearing  from  anyone  qualified  to  make  a  mental  health  

                                                                                                                                                                        



diagnosis. The master also found that Heather's illness presented a likelihood of serious  

                                                                                                                                                                       



harmto others, "particularly through an instrumentality that she controls, namely a dog."  

                                                                                                                                                                                       



                                                                                                                                                                            22  

But the evidence that she had threatened others with her dog was largely equivocal                                                                                               or  

                                                                                                                                                                                 



              20            In this case, the master could have satisfied the statute by providing notice                                                                



of the hearing to Heather and allowing her to appear and testify.                                                        



              21            See Alaska R. Civ. P. 61; see also Wyatt v. State, 981 P.2d 109, 112 (Alaska  

                                                                                                                                                                      

 1999) ("If the trial court erred in its ruling, we then determine whether the error was  

                                                                                                                                                                             

harmless.").  

                           



              22            The concerns about Heather's ability to control her dog appear to stem  

                                                                                                                                                                           

                                                                                                                                                         (continued...)  



                                                                                        -7-                                                                                7078
  


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

         23  

stale.        As a result, it is likely that the master's failure to conduct an interview with                                                       



Heather as part of the statutorily required screening investigation had a prejudicial effect                                                       



                                                       24  

on the outcome of the hearing.                              



                                                                                                                                                        

                        In addition we note that the statute requires the superior court, as part of the  



                                                                                                                                              

screening investigation, to "evaluat[e] . . . the reliability and credibility of persons  

                                                                                   25   This evaluation is especially important  

                                                                                                                                            

providing information or making allegations." 



in  cases  such  as  Heather's,  in  which  the  persons  alleging  mental  illness  and  

                                                                                                                                      



dangerousness are interested parties with only a layperson's knowledge rather than  

                                                                                                                                                     



impartial mental health professionals.  When petitions for evaluation orders are brought  

                                                                                                                                               



by lay people, the superior court can demonstrate that it has conducted this evaluation  

                                                  



by explicitly making reliability and credibility findings as to the witnesses at the hearing.  

                                                                                                                                                               



Similar findings are required in the criminal context when warrants are issued based on  

                                                                                                                                                         



            22          (...continued)  



                                                                                                                                                      

primarily from Heather's physical strength, not her mental health.  For example, one  

                                                                                                                                                       

witness testified:  "[I]t's a German Shepherd[.]  It's a healthy animal.  And she's not  

                                                                                                                                                       

healthy enough to control it."  Another observed:  "The dog is in a hurry to go to the  

                                                                                                                                                     

bathroom [and] kind of pulls on her. . . .  She starts turning into the wall and pretty soon  

                                                                                                                                                               

. . . she falls head over heels all the way to the landing.   And I know it hurt her."  

                                                                                                                                                         

Similarly, another witness expressed concern that Heather was "going to get hurt just by  

                                                                                                                                              

the number of times that she's falling down[] being dragged by the dog."   Finally,  

                                                                                                                                                       

another noted that Seacliff owners had complained "about the dog and the rope and that  

                                                               

she doesn't have control over it."  



            23          One witness testified, for example, that Heather threatened a neighbor with  

                                                                                                                                                     

her dog "a couple of years ago."  

                                                  



            24          See, e.g., Klawock Heenya Corp. v. Dawson Constr./Hank's Excavation,  

                                                                                                                                        

778 P.2d 219, 220 (Alaska 1989) (holding that superior court's exclusion of evidence  

                                                                                                                                             

was not harmless error because the other evidence was "flimsy at best").  

                                                                                                                        



            25          AS 47.30.915(19).  

                                



                                                                            -8-                                                                    7078
  


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

                                                                                                                                                                                                                                                                   26  

information from confidential informants                                                                                                                                                                                                                                      and similarly could bolster the reliability of                                                                                                                                                                                                                     



a screening investigation.                                               



V.                                        CONCLUSION  



                                                                                    For the foregoing reasons, we REVERSE AND VACATE the superior                                                                                                                                                                                                                                                                                                                                                       



court's order authorizing hospitalization for evaluation.                                                                                                                                                                                                                                                                                                      



                                          26                                        See State v. Jones                                                                                          , 706 P.2d 317, 326                                                                                                  (Alaska1985) ("It is imperative under                                                                                                                                                                 



the Alaska Constitution that the magistrate be presented with adequate supporting facts                                                                                                                                                                                                                                                                                                                                                                                                                                         

 so that he can independently test the confidential informant's basis of knowledge and                                                                                                                                                                                                                                                                                                                                                                                                                                                

veracity.   Only if these requirements are met can a reviewing court be certain that the                                                                                                                                                                                                                                                                                                                                                                                                                                                  

magistrate has fulfilled his constitutional duty to render an independent determination                                                                                                                                                                                                                                                                                                                                                                               

that probable cause exists."                                                                                                                                                  (footnote and internal quotation marks omitted)).                                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                                                       -9-                                                                                                                                                                                                                                                       7078
  

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