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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. (7/1/2016) sp-7112

In Re Necessity for the Hospitalization of Mark V. (7/1/2016) sp-7112

            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-15536  

                                                                      )  

               

MARK V.                                                                                                                                          

                                                                      )          Superior Court No. 3AN-14-00679 PR  

                                                                      )  

                                                                                                        

                                                                      )          O P I N I O N  

                                                                      )  

                                                                                                                   

                                                                      )          No. 7112 - July 1, 2016  



                                                                                                                       

                       A              

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

                                                                                                          

                       Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                                          

                       Appearances:  Rachel Cella, Assistant Public Defender, and  

                                                                                                               

                       Quinlan Steiner, Public Defender, Anchorage, for Appellant  

                                                                                                                 

                       Mark V.  Jacqueline G. Schafer and Ruth Botstein, Assistant  

                                                                                                              

                       Attorneys  General,  Anchorage,  and  Craig  W.  Richards,  

                                                                                                                            

                       Attorney General, Juneau, for Appellee State of Alaska.  



                                                                                                                           

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

                                                       

                       Bolger, Justices.  



                                               

                       MAASSEN, Justice.  



I.          INTRODUCTION  



                                                                                                                                               

                       The superior court issued a 30-day involuntary commitment order after  



                                                                                                                                          

finding that Mark V. was gravely disabled and "entirely unable to fend for himself  

                                                           1   Mark argues that there was insufficient evidence to  

                                                                                                                                                    

independently in the community." 



prove he could not live independently. Although Mark's appeal is technically moot, his  

                                                                                                                                                   



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


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

                                                                                                                         

claim raises an important question that satisfies the public interest exception:  Where  



                                                                                                                              

does family and community support fit within the involuntary commitment process and  



                                                                                                                             

which  party  bears  the  burden  of  proving  or  disproving  that  a  respondent  has  that  



                                                                                                                            

support? We hold that the respondent's inability to function with outside support, when  



                                                                                                                    

relevant, is part of the petitioner's burden of proving that there is no less restrictive  



                                                                                                                       

alternative to commitment.  But we find in this case that the State's evidence satisfied  



                                                                                              

this burden, and we therefore affirm the 30-day commitment order.  



                                                              

II.       FACTS AND PROCEEDINGS  



                                                                                                                   

                    Anchorage police took Mark V. into emergency custody and transported  



                                                                                                                             

him to the psychiatric emergency department at Providence Alaska Medical Center after  



                                                                                                                              

he "presented himself nude in public" and claimed to be the King of England. Later that  



                                                                                                                  

same day Providence petitioned the superior court for an ex parte order authorizing  



                                                                                                               

Mark's hospitalization at Alaska Psychiatric Institute (API), based on its determination  



                                                                                                                         

that he was "gravely disabled" as a result of paranoid schizophrenia. The petition alleged  



                                                                                                                        

that Mark was living in squalor and unable to adequately provide for his basic needs.  



                                                                                                                               

                    The  superior  court  granted  the  petition  and  ordered  that  Mark  be  



                                                                                                                        

transported to API for an evaluation period not to exceed 72 hours. Within that 72-hour  



                                                                                                                           

period the State filed another petition, signed by psychiatrist Dr. LeeAnn Gee and a  



                                                                                                                              

registered nurse, seeking to extend Mark's commitment for an additional 30 days.  The  



                                                                                                                           

petition alleged that Mark was gravely disabled due to his symptoms, that he could  



                                                                                                                  

improve with treatment, and that there were no less restrictive alternatives to involuntary  



                                                                                                                        

commitment.  The petition listed Mark's parents as potential witnesses for the State.  



                                                                                                                             

                    A 30-day commitment hearing was held before Magistrate Judge Una  



                                                                                                                               

Gandbhir.  Dr. Gee, Mark's attending psychiatrist at API since his admission, was the  



                                                                                                                                  

State's sole witness.  She testified that Mark's symptoms were most representative of a  



                                                                                                                              

bipolar type of schizophrenic disorder with manic episodes. She testified that Mark was  



                                                               -2-                                                         7112
  


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

                                                                                                                  

gravely disabled as a result:   He had difficulty caring for himself, was increasingly  



                                                                                                                                

agitated, exposed himself, threatened to hit people, and had difficulty redirecting his  



                                                                                                                               

attention away from his delusions.  But Dr. Gee  also said she did not believe Mark was  



                                                                                                    

truly a physical threat to others or in danger of harming himself.  



                                                                                                                        

                    Dr. Gee testified that a 30-day commitment would help Mark stabilize  



                                                                                                                                  

because he could consistently receive the increased dosages of medication necessary to  



                                                                                                                    

resolve his manic symptoms.  She acknowledged that Mark had been taking medication  



                                                                                                                   

on  an  outpatient  basis  and  that  he  regularly  received  services  through  Anchorage  



                                                                                                                      

Community Mental Health.  She noted that Mark accepted his medication at scheduled  



                                                                                                                              

times, but that when he was agitated he resisted taking medication that would help calm  



                                                                                                                 

him down.  Dr. Gee testified that, as a result of Mark's refusal to take oral medications,  



                                                                                                                               

API staff had several times been required to administer emergency injections to calmhim  



                                                                                                                         

down when he became aggressive and threatening.   She was concerned that Mark's  



                                                                                                                     

inappropriate behavior would continue if he were released before his manic symptoms  



                                                                                                                               

improved and that he would eventually return to the emergency room and API. Dr. Gee  



                                                                                                                        

gave her opinion that if Mark returned home he would not "be able to properly maintain  



                                                                                                                              

himself and to clean up his apartment." She testified that Mark "would continue to need  



                                                                                             

his parents to help him with food or cooking at this point in time."  



                                                                                                                                  

                    Mark testified next.  He described the process of acquiring medication as  



                                                                                                                          

an outpatient, identified his doctor, and agreed to continue taking his medication, though  



                                                                                                                       

he also made conflicting statements about whether he needed it. He described exposing  



                                                                                               

himself as a "mistake in judgment" and said he would sign a behavior contract to stop  



                                                                                                                               

doing it.  He testified that he used the food stamp program, paid his rent on time, and  



                                                                                                                        

usually cleaned his apartment if given notice of an upcoming inspection.  He testified  



                                                                                                                                

that his parents helped him, but he also asserted that his father had "ripped [him] off for  



                                                                                                                           

like, $11 grand." At the close of his testimony Mark's attorney argued that Mark should  



                                                                -3-                                                         7112
  


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

be returned home on an outpatient treatment basis as a less restrictive alternative to                                                                                                                                                                                                                                                                        



hospitalization at API.                                                                         



                                                        Themagistratejudgemadeoralfindings that,based onDr.Gee'stestimony,                                                                                                                                                                                                   



there was clear and convincing evidence that Mark was gravely disabled as a result of                                                                                                                                                                                                                                        



his mental illness and there was no less restrictive alternative to hospitalization.                                                                                                                                                                                                                                                               The  



magistrate   judge's   subsequent   written   order   reiterated   her   findings   that   Mark   was  



"mentally ill and gravely disabled," based both on Dr. Gee's testimony and the judge's                                                                                                                                                                                                                                                  



own   observations   of   Mark's   behavior   in   the   courtroom,   which   "included   several  



uncontrollable outbursts, during which he expressed among other things his religious                                                                                                                                                                                                                                              



convictions, fear of the judicial officer, a desire not to be executed for a parking ticket,                                                                                                                                                                                                                                                 



and   the   assertion   that   he   is   a   sorcerer."     The   magistrate   judge   also  noted   Mark's  



"complete inability to be redirected in any way."                                                                                                                                                                 She concluded that Mark's mental                                                                                        



illness and behavior "impair his judgment and reasoning to the point where he would be                                                                                                                                                                                                                                                                       



entirely unable to fend for himself independently in the community."                                                                                                                                                                                                                             



                                                        Thesuperior court                                                          approved the30-day commitment                                                                                                              order afewdays                                                      later;  



it had an expiration date of April 25, 2014.                                                                                                                                        



III.                        STANDARDS OF REVIEW                                                                



                                                        "Factual findings in involuntary commitment . . . proceedings are reviewed                                                                                                                                                                                               



for clear error," and we reverse only if we have "a definite and firm conviction that a                                                                                                                                                                                                                                                                           

                                                                                                       2           "[W]hether factual findings comport with the requirements  

mistake has been made."                                                                                                                                                                                                                                                                                         

of AS 47.30" is a question of law we review de novo.3                                                                                                                                                                               The mootness doctrine presents  

                                                                                                                                                                                                                                                                                                                                     



                            2  

                                                                                                                                                                                                                                                                                                                                                                           

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



                            3                          Id.  

                                                                     



                                                                                                                                                                              -4-                                                                                                                                                                                    7112  


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

                                                                                                                                                                    4  

a question of law, and we "resolve issues of mootness using our independent judgment."                                                                                 



                                                                                                                                                           5  

                                                                                                                                                               

We also apply our independent judgment to questions of statutory interpretation.                                                                              We  



                                                                                                                                                                    6  

                                                                                                                                                                       

                                                                                                                                                     

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



IV.	         DISCUSSION  



                                                                                                                                                      

             A.	          We Consider The Burden Of Proof Issue Under The Public Interest  

                                                                                    

                          Exception To The Mootness Doctrine.  



                                                                                                                                                     

                          Mark  argues  that  the  superior  court,  in  finding  that  he  was  "gravely  



                                                                                                                                                

disabled" in part because of his inability to function independently, gave insufficient  



                                                                                                                                                 

consideration to thepossibility that hecould functionindependently ifhehad appropriate  



                                                                                                                                                              

support from his family. The State responds that it was Mark's burden to prove that such  



                                                                                                                                                                  

outside support existed.  Mark's 30-day commitment period is long past, and we held in  



                                                                                                                                                           

 Wetherhorn  v.  Alaska  Psychiatric  Institute that  an  appeal  of  a  commitment  order  

                                                                                              7  However, we review moot questions  

                                                                                                                                                    

becomes moot when the commitment period ends. 

that satisfy either the public interest exception or the collateral consequences exception.8  

                                                                                                                                                                       



Here, we conclude that the public interest exception enables us to decide an issue raised  

                                                                                                                                                           



by Mark's appeal: Where does family and community support fit within the involuntary  

                                                                                                                                                



             4           In re Mark V.              , 324 P.3d 840, 843 (Alaska 2014) (citing                                         Ulmer v. Alaska     



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



             5            Wetherhorn, 156 P.3d at 375 (citing Holderness v. State Farm Fire &Cas.  

                                                                                                                                                              

Co., 24 P.3d 1235, 1237 (Alaska 2001)).  

                                                                 



             6           In re Joan K., 273 P.3d 594, 596 (Alaska 2012) (quoting Olson v. State,  

                                                                                                                                                           

260 P.3d 1056, 1059 (Alaska 2011)).  

                                                          



             7            156 P.3d at 380.  

                                                 



             8           In re Mark V., 324 P.3d at 843 (first citing Wetherhorn, 156 P.3d at 380  

                                                                                                                                                               

(public interest exception); and then citing In re Joan K., 273 P.3d at 597-98 (collateral  

                                                                                                                                                   

consequences exception)).  

                            



                                                                                -5-	                                                                        7112
  


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

commitment process, and who bears the burden of proving or disproving whether the                                                                                                                              



respondent has that support?                                               



                                 We   consider  three   factors   in   determining   whether   the   public   interest  



exception applies to an otherwise moot appeal:                                                                            "(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 are so important                                                                                                       

                                                                                                                                                                         9    All three factors  

to the public interest as to justify overriding the mootness doctrine."                                                                                                                               



weigh in favor of review in this case.  First, the disputed issue is capable of repetition  

                                                                                                                                                                                               



because it concerns the interpretation of the often-used civil commitment statutes and  

                                                                                                                                                                                                             

does not depend on Mark's particular circumstances.10  Second, review of the issue could  

                                                                                                                                                                                                         



be repeatedly circumvented, since appeals of 30-day commitment orders are invariably  

                                                                                                                                                                                              



mooted by the passage of time. And finally, the issue implicates the public interest. We  

                                                                                                                                                                                                              



have emphasized that our involuntary commitment statutes must be interpreted to protect  

                                                                                                                                                                                                                         



"against the 'massive curtailment of liberty' that involuntary commitment represents"  

                                                                                                                                                                                          

and the "variety of dangers particular to those subject to civil commitment."11  

                                                                                                                                                          



                                 Because the public interest exception to the mootness doctrine is satisfied,  

                                                                                                                                                                                                 

we review the burden of proof issue on its merits.12  

                                                                                                           



                 9                Wetherhorn, 156 P.3d at 380-81 (quoting                                                                Akpik v. State, Office of Mgmt.  



& Budget                , 115 P.3d 532, 536 (Alaska 2005)).                                    



                 10              See E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1107 (Alaska 2009)  

                                                                                                                                                                                                        

(noting that matters of statutory interpretation do not depend on particular facts and are  

                                                                                                                                                                                                               

capable of repetition).  

                            



                 11               Wetherhorn, 156 P.3dat378(internalcitation omitted) (quoting Humphrey  

                                                                                                                                                                                             

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

                                                                     



                 12              Our conclusion that the public interest exception applies to this appeal  

                                                                                                                                                                                                      

makes it unnecessary for us to address another of Mark's arguments:  that the State's  

                                                                                                                                                                                                      

                                                                                                                                                                                     (continued...)  



                                                                                                        -6-                                                                                               7112
  


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

             B.	         The    Petitioner    Bears    The    Burden    Of    Proving,    By    Clear    And  

                         Convincing Evidence, That A Respondent Is Gravely Disabled And                                                                  

                         That Commitment Is The Least Restrictive Alternative.                                   



                         Involuntary 30-day commitments are authorized by law for persons who                                                             

are found to be "gravely disabled."                               13  

                                                                                                                                                                    

                                                                       "Gravely disabled," in turn, is defined to include  



                                                                                                                                      

                         a condition in which a person as a result of mental illness  



                                            

                                      . . . .  



                                                                                                                              

                                     (B)  will, if not treated, suffer or continue to suffer  

                                                                                                                          

                         severe and abnormal mental, emotional, or physical distress,  

                                                                                                                                     

                         and this distress is associated with significant impairment of  

                                                                                                                  

                        judgment,   reason,   or   behavior   causing                                         a   substantial  

                                                                                                                   

                         deterioration  of  the  person's  previous  ability  to  function  

                                                    [14]  

                         independently.                     



The commitment order in this case was based on the court's finding that Mark's "mental  

                                                                                                                                                    



illness and resulting behavior currently impair his judgment and reasoning to the point  

                                                                                                                                                        



where he would be entirely unable to fend for himself independently in the community."  

                                                                                                                                                                    



Mark  argues  that  the  court  misinterpreted  the  phrase  "function  independently"  in  

                                                                                                                                                             



AS 47.30.915(9)(B) because the court failed to account for assistance that Mark's family  

                                                                                                                                                      



             12(...continued)  



                                                                                                                       

right to recover the costs of treatment under AS 47.30.910 is a collateral consequence  

                                                                                                                                                          

that triggers application of the collateral consequences exception.   We reserve that  

                                                                                                                                                             

question for a case in which the issue is more fully developed. It is also unnecessary for  

                                                                                                                                                    

us  to  address  Mark's  argument  that  AS  47.30.765  creates  a  right  to  appeal  

                                                                                                                                                             

notwithstanding the mootness doctrine, contrary to our holdings in Wetherhorn and the  

                                                     

first In re Mark V. opinion.  



             13          AS 47.30.735(c) ("At the conclusion of the hearing the court may commit  

                                                                                                                                                    

the respondent to a treatment facility for not more than 30 days if it finds, by clear and  

                                                                                                                                                           

convincing evidence, that the respondent is mentally ill and as a result is likely to cause  

                                                                                                                                                        

harm to the respondent or others or is gravely disabled.").  

                                                                                       



             14          AS 47.30.915(9) (emphasis added).  

                                                                              



                                                                              -7-	                                                                      7112
  


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

could provide.                        The State responds that it was Mark's burden to prove he had the                                                                                              



necessary outside support and he failed to carry that burden.                                                               



                               We   decline   to  place   this   burden   on   the   respondent.     Proving   the  



respondent's inability to function independently with support, when relevant, is simply                                                                                                     



a part of the petitioner's burden of proving that there is no less restrictive alternative to                                                                                                          



involuntary commitment - a required element of any petition.                                                                     



                               Under the governing                                  statute, it is the State's burden in an involuntary                                         



commitment case to establish "by clear and convincing evidence" that the respondent is                                                                                                                  

                                             15  We observed in Wetherhorn that part (B) of the "gravely disabled"  

"gravely disabled."                                                                                                                                                                   



definition,  the  one  relevant  here,  appears  to  respond  directly  to  the  United  States  

                                                                                                                                                                                             



Supreme Court's admonition that it is unconstitutional to confine, "without more[,] a  

                                                                                                                                                                                                         



                                                                                                                                                                                                        16  

nondangerous individual who is capable of surviving safely in freedom by himself."                                                                                                                            

                                                                                                                                                                                   



As we also noted, the Supreme Court requires a trial court to find "that the person is  

                                                                                                                                                                                                        



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

                                                                                                                                                                                                  

of willing family members or friends.' "17  

                                                                                           



                                This  case  requires  that  we  clarify  and  expand  on  what  we  said  in  

                                                                                                                                                                                                      



 Wetherhorn. We reiterate that a person's inability to function outside of an institutional  

                                                                                                                                                                                



setting even with the support of family and friends is indeed a constitutionally-required  

                                                                                                                                                 



part of the test for whether the person may be involuntarily committed. But whether the  

                                                                                                                                                                                                     



person has such outside support is an issue that fits uneasily within the definition of  

                                                                                                                                                                                                       



                15             AS   47.30.735(c);  see   also  Addington   v. Texas,   441  U.S.   418,   427,   433  



(1979)  (holding  that  clear  and  convincing  evidence  is  the  minimum  standard  "that  due  

process  requires  [for]  the  state  to  justify  confinement").   



                16              156 P.3d  at  378  (quoting  O'Connor v. Donaldson, 422  U.S.  563,  576  

                                                                                                                                                                                                  

(1975)).  



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



                                                                                                   -8-                                                                                          7112
  


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

"gravely disabled" in AS 47.30.915(9)(B).                                                                                          The definition establishes "the person's                                                       



previous ability to function independently" as the baseline from which "a substantial                                                                                                                                       



deterioration" is measured; however, it is the "substantial deterioration" in that ability                                                                                                                                               



that is important to whether the person has become "gravely disabled," not the ability's                                                                                                                                            



current or historic level. In other words, under a literal reading of the definition, a person                                                                                                                                        



may   be   "gravely   disabled"   because   of   a   substantial   deterioration  in   the   person's  

condition despite retaining some "ability to function independently."                                                                                                                                    18  



                                       But  Wetherhorn makes clear that the test for involuntary commitment must  

                                                                                                                                                                                                                                              



address the critical issue of whether the person can function independently with support,  

                                                                                                                                                                                                                                     

as defined in O'Connor - if not in the definition of "gravely disabled"19 then elsewhere.  

                                                                                                                                                                                                                                                               



And a different place in the analysis better corresponds with the language and structure  

                                                                                                                                                                                                                                   



of Alaska's 30-day commitment statutes.  State policy requires that persons suffering  

                                                                                                                                                                                                                                 



from mental illness "be treated in the least restrictive alternative environment consistent  

                                                                                                                                                                                                                               

                                                                                          20            A   "least   restrictive   alternative"   is   defined   in  

with   their   treatment   needs."                                                                                                                                                                                                                 

                                                                  



AS 47.30.915(11) to mean:  

                                                              



                    18                 We have previously considered this definition in terms of whether the                                                                                                                                      



respondent can function alone, observing that "[p]eople are deemed 'gravely disabled'                                                                                                                                            

when they are so unable to care for themselves that it seems very likely that they will                                                                                                                                                         

come to serious harm without help."                                                                        Meyers v. Alaska Psychiatric Inst.                                                                   , 138 P.3d 238,                

242 (Alaska 2006) (citing then-AS 47.30.915(7)).                                                        



                    19                 Discussing the preconditions to involuntary commitment identified by the  

                                                                                                                                                                                                                                                   

Supreme Court in O'Connor - "(1) that the person presents a danger to self or others;  

                                                                                                                                                                                                                                        

or (2) that the person is 'helpless to avoid the hazards of freedom either through his own  

                                                                                                                                                                                                                                               

efforts or with the aid of willing family members or friends,' " Wetherhorn, 156 P.3d at  

                                                                                                                                                                                                                                                       

376 (quoting O'Connor, 422 U.S. at 575 & n.9) - we observed in  Wetherhorn that  

                                                                                                                                                                                                                                                

"[t]he precise wording of these . . . requirements is left to the states, 'so long as they meet  

                                                                                                                                                                                                                                              

the constitutional minimum.' " Id . (quoting  Addington , 441 U.S. at 431).  

                                                                                                                                                                                                       



                    20                 AS 47.30.655(2).  

                                                  



                                                                                                                          -9-                                                                                                                7112
  


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

                        mental health treatment facilities and conditions of treatment                              

                        that  



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

                        necessary to achieve the treatment objectives of the patient;  

                        and  



                                                                                                                               

                                    (B) involve no restrictions on physical movement nor  

                                                                                                                 

                        supervised residence or inpatient care except as reasonably  

                                                                                                                   

                        necessaryfor theadministrationoftreatment or theprotection  

                                                                                             

                        of the patient or others from physical injury.  



                                                                                                                                                        

                        Consistent with this state policy and the explanatory definition, among the  



                                                                                                                                                       

allegations  that  must  be  made  in  any  petition  for  30-day  commitment  is  "that  the  



                                                                                                                                          

evaluation staff has considered but has not found that there are any less restrictive  



                                                                                                                                                      

alternatives available that would adequately protect the respondent or others; or, if a less  



                                                                                                                                                        

restrictive involuntary formof treatment is sought, specify the treatment and the basis for  

                           21   The availability of "less restrictive alternatives" is also addressed in  

                                                                                                                                                          

supporting it." 



AS  47.30.735,  which  explains  the  procedures  and  possible  outcomes  of  a  30-day  

                                                                                                                                                



commitment hearing.  Subsection (d) provides:  "If the court finds that there is a viable  

                                                                                                                                                  



less restrictive alternative available and that the respondent has been advised of and  

                                                                                                                                                      



refused  voluntary  treatment  through  the  alternative,  the  court  may  order  the  less  

                                                                                                                                                      



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

                                                                                                                                                       

respondent."22                But  the  statute  does  not  expressly  require  the  court  to  find  as  a  

                                                                                                                                                          



prerequisite to commitment that there are no less restrictive alternatives, nor does it  

                                                                                                                                                          



expressly apply the "clear and convincing evidence"standard ofproofto any issues other  

                                                                                                                                                    



            21          AS 47.30.730(a)(2).   



            22          AS 47.30.735(d).  

                                



                                                                           -10-                                                                          7112  


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

than whether "the respondent is mentally ill and as a result is likely to cause harm to the                                                                                                                                                                               

respondent or others or is gravely disabled."                                                                                                 23  



                                           Butas noted above,our precedent makesclearthatthecourt'sconsideration  

                                                                                                                                                                                                                                         



of less restrictive alternatives to confinement, including whether the person is "helpless  

                                                                                                                                                                                                                                                      

to avoid the hazards of freedom . . . with the aid of willing family members or friends,"24  

                                                                                                                                                                                                                                                   



must be a prerequisite to commitment in order for the process to be constitutionally  

                                                                                                                                                                                                                                 



 sound.  At issue in Wetherhorn was the amount of "distress" a person must be suffering  

                                                                                                                                                                                                                                                       

before  involuntary  commitment  is  justified.25                                                                                                                  Whether  a  person  could  survive  

                                                                                                                                                                                                                                                         



independently with others' help was not central to the holding, but it was a part of our  

                                                                                                                                                                                                                                                 



analysis.                          We  concluded  "that  the  'distress'  that  justifies  commitment  [under  the  

                                                                                                                                                                                                                                                                        



definition of "gravely disabled" in AS 47.30.915(9)(B)] refers to a level of incapacity  

                                                                                                                                                                                                                                                  



that prevents the person in question from being able to live safely outside of a controlled  

                                                                                                                                                                                                                                                



                     23                    AS 47.30.735(c).                                        Subsection (c) expressly applies a clear and convincing                                                                                      



 standard, but only subsection (d) addresses whether "there is a viable less restrictive                                                                                                                                                           

alternative."   We note that other state statutory schemes explicitly require the court to                                                                                                                                                                                   

find by clear and convincing evidence that no less restrictive alternative exists.                                                                                                                                                                    See, e.g.                   ,  

Minn. Stat. Ann.  253B.09 (imposing a clear and convincing standard and requiring a                                                                                                                                                                                            

court that imposes involuntary                                                                         commitment to                                       "identify   less restrictive alternatives                                         

considered and rejected . . . and the reasons for rejecting");                                                                                                                                  see also                    N.D. Cent. Code                       

Ann.  25-03.1-21(1) ("Before making its decision in an involuntary treatment hearing,                                                                                                                                                                    

the court shall review a report assessing the availability and appropriateness for the                                                                                                                                                                                   

respondent of treatment programs other than hospitalization . . . .");                                                                                                                                                          In re D.Z.                         , 649   

N.W.2d 231, 235 (N.D. 2002) ("The court must find by clear and convincing evidence                                                                                                                                                                     

that   alternative   treatment   is   not   adequate   or   hospitalization   is   the   least   restrictive  

alternative." (citing                                          In re J.K.                     , 599 N.W.2d 337, 340 (N.D. 1999)).                                                             



                     24                    Wetherhorn, 156 P.3d at 376 (quoting O'Connor, 422 U.S. at 574 n.9).  

                                                                                                                                                                                                                                                               



                     25                   Id. at 375-79.  

                                                             



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                          26  

environment."                 We cited the statutory requirement that a 30-day commitment petition                                           



"allege that the evaluation staff has considered but has not found that there are any less                                                          

                                                            27  and we strongly implied that a committing court's  

restrictive alternatives available,"                                                                                                          



finding on this subject, as with the other prerequisites to commitment, was subject to the  

                                                                                                                                                     

"clear and convincing evidence" standard.28  In a later case, In re Joan K., after affirming  

                                                                                                                                          



the superior court's finding by "clear and convincing evidence that . . . [the respondent]  

                                                                                                                                     



was likely to cause harm to herself due to her mental illness," we went on to hold that  

                                                                                                



"[t]he  record  [also]  supports  the  superior  court's  finding"  that  there  was  no  less  

                                                                                                                                                  



restrictive alternative to a 30-day commitment - but we did not specify the standard  

                                                                                                                                           

under which the latter finding was reviewed.29  

                                                               



                        We now make clear what was strongly implied in Wetherhorn.  Because a  

                                                                                                                                                        



30-day commitment petition must "allege that the evaluation staff has considered but has  

                                                                                                                                                     



not found that there are any less restrictive alternatives available that would adequately  

                                                                                                                                       

                                                          30  and because the trial court's deliberate consideration  

protect the respondent or others,"                                                                                                

                                             



of this issue is critical to the protection of the respondent's liberty interests, we hold that  

                                                                                                                                                    



a petitioner must prove, by clear and convincing evidence, the petition's allegation that  

                                                                                                                                                    



            26         Id.  at  378.  



            27         Id.  (quoting  AS  47.30.730(a)(2)).  



            28         Id.   (listing   the   least   restrictive   alternative   requirement   among   statutory  



protections against  unconstitutional  commitment  and  noting that  "[a]s further  protection,  

the  statute  directs  the  court  to  make  its  findings  by  'clear  and  convincing'  evidence").  



            29          273 P.3d 594, 601-02 (Alaska 2012).  

                                                                               



            30          AS 47.30.730(a)(2).  

                               



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

there are no less restrictive alternatives.                                                  31  This is not a secondary concern, nor is it -   



as the structure of AS 47.30.735(c) and (d) might suggest - something to be considered                                                                                            



only after the court has decided that the respondent should be committed.                                                                                                    Finding that   



no   less   restrictive   alternative   exists   is   a   constitutional   prerequisite   to   involuntary  



hospitalization.   



                C.	            In    Mark's    Case    It    Was    Not    Error    To    Find    That    A    30-Day  

                                Commitment Was The Least Restrictive Alternative.                                                     



                               Mark argues that the superior court                                              erredinfindingbyclear and convincing                             



                     32  

evidence                                                                                                                                                                                          

                            that  he  was  "entirely  unable  to  fend  for  himself  independently  in  the  



                                                                                                                                                                                                    

community" because the factors upon which the court relied failed to account for his  



                31              Cf. In re Michelle L.                           , 867 N.E.2d 1187, 1191 (Ill. App. 2007) ("To order   



respondent's involuntary admission to a mental-health facility, the trial court had to find,                                                                                                     

by   clear   and   convincing   evidence,   that   she   was   a   '[p]erson   subject   to   involuntary  

admission' . . . and that involuntary admission was the 'least[-]restrictive alternative.' "                                                                                                             

(first and third alterations in original) (internal citations omitted)). The structure of                                                                                                            

Illinois's involuntary commitment statutes is similar to that of Alaska, since the "clear  

                                                                                                                                                                                                

and convincing evidence" standard is not expressly extended by statute, but courts have  

                                                                                                                                                                                                

held that it applies nonetheless. See 405 Ill. Comp. Stat. Ann. 5/3-808 (West 2010) ("No  

                                                                                                                                                                                    

respondent may be found subject to involuntary admission on an inpatient or outpatient  

                                                                                                                                                                                                  

basis unless that finding has been established by clear and convincing evidence."); 405  

                                                                                                                                                                                             

Ill. Comp. Stat. Ann. 5/3-811 (West 2011) (providing that once "any person is found  

                                                                                                                                                                                   

subject to involuntary admissionon aninpatient basis, thecourtshall consider alternative  

                                                                                                                                                                               

mental  health  facilities  which  are  appropriate  for  and  available  to  the  respondent,  

                                                                                                                                                                                                

including but not limited to hospitalization," and that "[t]he court shall order the least  

                                                                         

restrictive alternative which is appropriate").  



                32             The "clear and convincing" evidence standard demands "a firm belief or  

                                                                                                                                                                                                      

conviction about the existence of a fact to be proved." In re Stephen O., 314 P.3d 1185,  

                                                                                                                                                                                              

 1192-93 (Alaska 2013) (quoting In re Johnstone, 2 P.3d 1226, 1234 (Alaska 2000)); see  

                                                                                                                                                                                                    

also id. at 1193 ("Clear and convincing evidence has been characterized as evidence that  

                                                                                                                                                                                                   

is greater than a preponderance, but less than proof beyond a reasonable doubt." (quoting  

                                                                                                                                                                                        

Brynna B. v. State, Dep't of Health &Soc. Servs., Div. of Family &Youth Servs., 88 P.3d  

                                                                                                                                                                                                 

527, 530 n.12 (Alaska 2004))).  

                                                                           



                                                                                                 -13-	                                                                                         7112
  


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

family support and thus required himto                                                 function successfully alone. But                                        while there was  



evidence that Mark could receive support from his family for the usual tasks of daily                                                                                                 



living - for example, cooking and cleaning - the evidence convincingly showed that                                                                                                        



he was unlikely to continue his required medications absent a 30-day commitment, and                                                                                                      



we therefore find no error.                     



                              The only witness the State called at the hearing was Dr. Gee,                                                                                      Mark's  

                                               33     Dr. Gee did not believe Mark was ready to "return to [his]  

treating psychiatrist.                                                                                                                                                                 



apartment and take care of himself."  She clarified that "he would continue to need his  

                                                                                                                                                                                           



parents to help him with food or cooking at this point in time. I don't think that he would  

                                                                                                                                                                                    



be able to properly maintain himself and to clean up his apartment . . . ."  While this  

                                                                                                                                                                                         



testimony acknowledged at least the possibility of family support for the cooking and  

                                                                                                                                                                                         



cleaning  aspects  of  independent  living,  Dr.  Gee's  major  concern  was  with  Mark's  

                                                                                                                                                                                 



medications.  She testified that his manic episodes, which caused him to be agitated,  

                                                                                                                                                                              



threaten  others,  and  expose  himself  and  which  had  prompted  his  initial  72-hour  

                                                                                                                                                                              



commitment, needed to be brought under control before he could be expected to go back  

                                                                                                                                                                                       



to a successful outpatient regimen.  Although Mark accepted his scheduled medication  

                                                                                                                                                                         



with meals, he was "reluctant to take any oral medications to help calm him throughout  

                                                                                                                                                                         



the day when he becomes more agitated and threatening."  Dr. Gee testified that API  

                                                                                                                                                                                        



staff had to resort several times to administering emergency injections.  She concluded  

                                                                                                                                                                           



that although Mark had in the past "been able to live independently . . . when he is taking  

                                                                                                                                                                                    



medications and he is following up with the outpatient clinic," he required treatment at  

                                                                                                                                                                                              



API to stabilize his mental illness before he could be released.  

                                                                                                                        



               33  

                                                                                                                                                                                           

                              The State listed Mark's parents as potential witnesses in its petition but did  

                                             

not call them at the hearing.  



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

                                                                   Mark's comments at the hearing supported a conclusion that going back to                                                                                                                                                                                                                                                                                             



outpatient   treatment   was   not   a   realistic   alternative   at   that   time.     During   Dr.  Gee's  



testimony he interjected that one of the medications was "poison.  I'm allergic to that.                                                                                                                                                                                                                                                                                                                                                               



It kills me"; he contended it had side effects related to his sexual performance; and even                                                                                                                                                                                                                                                                                                                                



after promising to take his medication he later appeared to backtrack:                                                                                                                                                                                                                                                                                   "But I don't have                                                



to take medication at all because it's a free country.                                                                                                                                                                                                               Don't you get it?"                                                          



                                                                   The magistrate judge specifically found, both on the record at the close of                                                                                                                                                                                                                                                                                         



the   hearing   and   in   the   next   day's   written   order,  that  there   was   no   less   restrictive  



alternative   for  Mark  than   a   30-day   commitment.     She   found   based   on   Dr.   Gee's  



testimony that Mark was "currently unable to understand his situation, symptoms or                                                                                                                                                                                                                                                                                                                                                   



current illness."                                                                She expressed concern "about [his] complete inability to be redirected                                                                                                                                                                                                                                        



in any way."                                                     Noting his uncontrolled outbursts and other irrational behavior during the                                                                                                                                                                                                                                                                                       



hearing,   the   magistrate   judge   concluded   that   Mark's   "mental  illness   and   resulting  



behavior currently impair his judgment and reasoning to the point where he would be                                                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                                                                                                 34  We conclude that  

 entirely unable to fend for himself independently in the community."                                                                                                                                                                                                                                                                                                                                                          



Dr. Gee's testimony about Mark's needed medications and his inability to follow an  

                                                                                                                                                                                                                                                                                                                                                                                                                                    



outpatient  regimen  -  testimony  that  was  essentially  unrebutted  -  supports  the  

                                                                                                                                                                                                                                                                                                                                                                                                                               



                                  34                               The magistrate judge also found that Mark's "aggressive and provocative                                                                                                                                                                                                                                            



demeanor could easily provoke a stranger to harm him."                                                                                                                                                                                                                                       In its brief the State proposes                                                                        

other hypothetical victims, suggesting that if Mark continues to expose himself in public                                                                                                                                                                                                                                                                                                                         

he could cause "mental and emotional trauma to others," particularly children. We have                                                                                                                                                                                                                                                                                                                                    

not yet decided whether "mental and emotional" injury to others satisfies the "harm"                                                                                                                                                                                                                                                                                                                        

requirement   of   AS   47.30.730(a)(1),   nor   have   we   decided   whether   violence   that   a  

respondent's condition may provoke in others justifies committing the respondent.                                                                                                                                                                                                                                                                                                                                             We  

need not address these issues now.                                                                                                                  



                                                                                                                                                                                                                -15-                                                                                                                                                                                                      7112
  


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

magistrate judge's finding that there was no less restrictive alternative to the requested                                                                                    

30-day commitment, and we see no clear error in that finding.                                                                               35  



                              Our conclusion in this case parallels our decision in In re Joan K.  In that  

                                                                                                                                                                                            



case, too, the respondent argued that the trial court erred when it ruled out outpatient  

                                                                                                                                                                             



treatment or a home placement, "particularly in light of [the testifying physicians']  

                                                                                                                                                                        



decisions not to contact her family or prior psychiatrist to ask about [the respondent's]  

                                                                                                                                                                     

potential success in such alternative settings."36                                                            We pointed out that the superior court  

                                                                                                                                                                                        



did hear testimony from the treating physicians that the respondent needed reliably- 

                                                                                                                                                                                 



administered medications to bring her manic symptoms under control; that constant  

                                                                                                                                                                                 



surveillance and care were necessary to ensure the success of this regimen; and that the  

                                                                                                                                                                                             



respondent's "changeable emotions" and lack of insight into her own behavior made it  

                                                                                                                                                                                                 



very unlikely that "she would follow through with outpatient treatment even if she said  

                                                                                                                                                                                           

she would."37                     We held this evidence sufficient to support the superior court's finding  

                                                                                                                                                                                    



that there was no less restrictive alternative that would adequately protect both the  

                                                                                                                                                                                             

                                                            38    On a similar record, we reach the same conclusion here.  

respondent and the public.                                                                                                                                                            

                                             



V.             CONCLUSION  



                              We  AFFIRM  the  decision  of  the  superior  court  granting  the  30-day  

                                                                                                                                                                                   



commitment petition.  

                               



               35             While the magistrate judge did not expressly state the standard of proof she                                                                                   



applied to the issue of whether there was a less restrictive alternative, the one-sided                                                                                       

nature of the medical evidence in this case makes it unnecessary for us to remand for                                                                                                        

reconsideration in light of the "clear and convincing evidence" standard we expressly                                                                                          

apply to the issue today.                 



               36             In re Joan K., 273 P.3d 594, 601 (Alaska 2012).  

                                                                                                                              



               37             Id. at 602.  

                                            



               38             Id.  



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