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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Hospitalization of Linda M. (3/22/2019) sp-7346

In Re Hospitalization of Linda M. (3/22/2019) sp-7346

           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                                )     Supreme  Court  No.  S-16841  

for  the  Hospitalization  of                                      )  

                                                                                                                                     

                                                                   )     Superior Court No. 3AN-17-02138 PR  

               

LINDA M.                                                           )  

                                                                                              

                                                                   )    O P I N I O N  

                                                                   )  

                                                                                                               

                                                                   )    No. 7346 - March 22, 2019  



                      A                                                                                           

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

                                                                                                           

                      Judicial District, Anchorage, Jennifer Henderson, Judge.  



                                                                                                          

                      Appearances: Laurence Blakely, Assistant Public Defender,  

                                                                                                                    

                      and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  

                                                                                                           

                      Linda  M.            David  T.  Jones,  Assistant  Attorney  General,  

                                                                                                              

                      Anchorage,and JahnaLindemuth,Attorney General,Juneau,  

                                           

                      for State of Alaska.  



                                                                                                          

                      Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                            

                      and Carney, Justices.  



                                             

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                         

                      The district court found that a woman charged with several misdemeanors  



                                                                                                                                         

was incompetent to stand trial and committed her to a state hospital.  The hospital later  



                                                                                                                                                  

brought petitions in the superior court for civil commitment and involuntary medication.  



                                                                                                                                        

The woman moved to dismiss or stay the proceedings, contending that the superior court  



                                                                                                            

was an improper forum because of the criminal case pending in the district court.  The  


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

 superior court denied the motion, asserted its jurisdiction to hear the case, and granted                                                          



 the hospital's petition for authority to administer medication.                                                              



                                   The woman appealed. We hold that the superior court properly asserted its                                                                                                           



jurisdiction over the civil commitment and involuntary medication petitions and that the                                                                                                                             



 superior court did not err in finding that involuntary medication was in the woman's best                                                                                                                         



 interests.   We therefore affirm the superior court's orders.                                                                    



 II.              FACTS AND PROCEEDINGS                 



                                                          1  

                                  Linda M.                                                                                                                                                                        

                                                             was charged with several misdemeanor criminal offenses.  The  



                                                                                                                                                                                                          

 district court found her incompetent to stand trial and, pursuant to AS 12.47.110, ordered  



                                                                                                                                                                                                                      

 that  she  be  committed  to  the  Alaska  Psychiatric  Institute  (API)  for  restoration  of  



                                                                                                                                                                                           

 competency.  The commitment order noted that "Defendant may not be involuntarily  



                                                                                                                                                                                                                   

 medicated pursuant to this order." The commitment was to last 90 days unless Linda was  



                                                                                                                                                                                                                     

 rendered  competent  earlier  or  the  criminal  charges  were  otherwise  "disposed  of  



                                                 

 according to law."  



                                                                                                                                                                                                                 

                                  Linda entered API in late July 2017.  While there she hit and spat on staff  



                                                                                                                                                                                                                        

 members and hit another patient, leading API to believe she was likely to cause harm to  



                                                                                                                                                                                                                     

 herself or others.  On August 9 API filed a petition to have Linda civilly committed for  



                                                                                                                                                                                                         

 30 days under AS 47.30.730, even though she could not leave API in any event because  



                                                                                                                                                                                                                    

 of the competency commitment order in her criminal case.   API also petitioned for  



                                                                                                                                                                                                              

 authority   under   AS   47.30.839   to   medicate   Linda,   without   her   consent,   with  



                                                                                                                                                                                                                    

 chlorpromazine (Thorazine) and diphenhydramine.  These petitions were filed in the  



                                                                                                                                                                               2  

                                                                                                                                                          

 superior court, the venue specified by the civil commitment statutes. 



                  1               We use a pseudonym to protect the party's privacy.                                                             



                  2  

                                                                                                                                                                                                                       

                                  See AS 47.30.730(a) (authorizing petitions for 30-day commitments to be  

                                                                                                                                                                                                                  

 filed in court); AS 47.30.839 (authorizing petitions for involuntary medication to be filed  

                                                                                                                                                                                          (continued...)  



                                                                                                           -2-                                                                                                  7346
  


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

                             Lindaobjected and moved to dismissorstaythesuperior court proceedings,                                                               



arguing   that   any   decisions   about   medication   should   be   made   by   the   district   court  



overseeing the competency commitment in her criminal case.                                                                                  A hearing was set for                      



August 23.   



                             On August 17 API filed an emergency motion for an order authorizing the                                                                                   



administration of crisis medication, asserting a                                                   high likelihood of situations requiring the                                         



"immediate use of medication in order to preserve the life of, or prevent significant                                                                                 

                                                                                               3 before the scheduled hearing. Linda again  

physical harm to, [Linda] or another person"                                                                                                                                      



raised her objection to the superior court's jurisdiction and contested the medication  

                                                                                                                                                                     



petition on its merits, arguing that API had made an insufficient showing that involuntary  

                                                                                                                                                                     



medication was necessary.  

                                                            



                             The superior court held an emergency hearing on August 18 and took  

                                                                                                                                                                                   



testimony from Linda's treating psychiatrist, Dr. Michael Alexander.  Dr. Alexander  

                                                                                                                                                                      



testified that Linda had already been put on crisis medication three times; each time she  

                                                                                                                                                                                      



had spit on a nurse and once she had punched another patient in the face. Dr. Alexander  

                                                                                                                                                                       



opined that the only alternative to administering medication was to leave Linda in a  

                                                                                                                                                                                          



locked room and hope she would calm down on her own. The superior court, after some  

                                                                                                                                                                                  



consideration, denied Linda's procedural arguments at least on an emergency basis and  

                                                                                                                                                                                     



granted the emergency motion for crisis medication.  

                                                                                                                    



                             At the August 23 hearing, the superior court returned to the procedural  

                                                                                                                                                                     



motion, denied it, then turned to the merits of the involuntary medication petition.  The  

                                                                                                                                                                                     



               2             (...continued)  



                                                                                                                               

in court); AS 47.30.915(3) (defining "court" as "superior court").  



               3             See AS 47.30.838(a)(1).  

                                               



                                                                                           -3-                                                                                    7346
  


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

                                                                                                                                                                                                                        4  

 court heard from the court visitor,                                                                                                                                                                                         who testified that Linda was incapable of giving                                                                                                                                                                                                                           



 informed consent because she did not accept her diagnosis of schizophrenia and was                                                                                                                                                                                                                                                                                                                                                                                                                                     



 incapable of rationally participating in treatment decisions. The court visitor did believe,                                                                                                                                                                                                                                                                                                                                                                                                     



however,   that   Linda's   objections   to  the   medication   based   on   her   pregnancy   were  



reasonable.   



                                                                                  Dr.Alexander again testified,describingLinda'sdiagnosisofschizophrenia                                                                                                                                                                                                                                                                                                      



 and his plan for involuntary medication.                                                                                                                                                                                                                        He testified that Linda had "ongoing" and                                                                                                                                                                                                               



 "persistent" paranoia and delusions that would not go away without medication.                                                                                                                                                                                                                                                                                                                                                                                                                                           He  



testified that Thorazine was the best medication for her because she had successfully                                                                                                                                                                                                                                                                                                                                                                                



taken it in the past without side effects and that other, similar medications had "a greater                                                                                                                                                                                                                                                                                                                                                                                                          



risk of causing ongoing problems for both her and for the child." Linda then testified on                                                                                                                                                                                                                                                                                                                                                                                                                                         



her own behalf, describing what she believed to be the side effects of the medication and                                                                                                                                                                                                                                                                                                                                                                                                                                  



 asserting mistreatment by API staff and her parents, involving, among other things,                                                                                                                                                                                                                                                                                                                                                                                                                  



putting excess gluten in her food and implanting metal in her body so they could track                                                                                                                                                                                                                                                                                                                                                                                      



her by computer.                                                                                           



                                                                                  The superior court found by clear and convincing evidence that Linda had                                                                                                                                                                                                                                                                                                                                                                 



 a mental illness - schizophrenia - and that because of it she was substantially likely                                                                                                                                                                                                                                                                                                                                                                                                                       



to harm herself or others if not treated.                                                                                                                                                                                                               It found that she was incapable of giving or                                                                                                                                                                                                                               



withholding informed consent to treatment, that it was in her best interests that she be                                                                                                                                                                                                                                                                                                                                                                                                                                          



treated with Thorazine as Dr. Alexander proposed, and that there were no available less                                                                                                                                                                                                                                                                                                                                                                                                                                    



 intrusive means to adequately treat her.                                                                                                                                                                                                                     The court therefore authorized involuntary                                                                                                                                                                



medication of Linda in both crisis and non-crisis situations.                                                                                                                                                                                                                                                                                                                  



                                                                                  Linda appeals both the superior court's ruling that it had jurisdiction over                                                                                                                                                                                                                                                                                                                                                        



the medication petition and its decision to grant that petition.                                                                                                                                                                                                                                                                                                                        



                                         4  

                                                                                                                                 

                                                                                  See AS 47.30.839(d).  



                                                                                                                                                                                                                                                                 -4-                                                                                                                                                                                                                                                 7346  


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

III.	      STANDARD OF REVIEW           



                                                                                  5                            6  

                     Wedecidedenovo               questionsofstatutory                                            

                                                                                    and constitutional  interpretation  



                          7  

                                                                                                                    

and  jurisdiction.              "  'Factual  findings  in  involuntary  commitment  or  medication  



                                                                                                                                

proceedings are reviewed for clear error,' and we reverse those findings only if we have  



                                                                                                  8  

                                                                                                                      

a 'definite and firm conviction that a mistake has been made.'  "                                    However, "[w]hether  



                                                                                                                                   

those findings meet the . . . statutory requirements is a question of law we review de  

novo."9  



IV.	      DISCUSSION  



                                                                                                                 

          A.	        The Superior Court Did Not Err By Hearing The Civil Commitment  

                                                                      

                     And Involuntary Medication Petitions.  



                                                                                                                                    

                     Linda contends that the superior court erred when it denied her request to  



                                                                                                                             

dismiss or stay civil commitment and involuntary medication proceedings; she argues  



                                                                                                                                  

that the only proper forum for such proceedings was the district court in which the  



                                                                                                                 10  

                                                                                                                                    

criminal case was pending.  She contends that under Sell v. United States                                           the court in  



                                                                                                                                    

the criminal case must consider the question of involuntary medication "even [if it is  



                                                                                                                    

sought] for reasons other than [competency] restoration"; that Alaska's competency  



                                                                                                                             

statutedoes not contemplatethecommencementofcivil commitmentproceedings during  



          5          In  re  Hospitalization  of  Jacob  S.,  384  P.3d  758,  764  (Alaska  2016).  



          6          State  v.  Alaska  Civil  Liberties   Union,  978  P.2d  597,  603  (Alaska   1999).  



          7          Barlow  v.  Thompson,  221  P.3d  998,   1001  (Alaska  2009).    



          8          In   re   Jacob   S.,   384   P.3d   at   763-64  (quoting  Wetherhorn   v.   Alaska  



Psychiatric  Inst.,  156  P.3d  371,  375  (Alaska  2007),  overruled  in  part  on  other  grounds  

by  In  re  Hospitalization  of  Naomi  B.,  ____  P.3d  ____,  Op.  No.  7328  at   19,  2019  WL  

 167223,  at  *8  (Alaska  Jan.   11,  2019)).   



          9	         Id.  

                           



           10        539 U.S.  166 (2003).  

                                           



                                                                 -5-	                                                         7346
  


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

the criminal commitment; and that allowing simultaneous criminal and civil proceedings                                                                                                                                       



will result in various practical problems.                                                                                We disagree.   



                                        In  Sell  the United States Supreme Court required a court in a criminal case                                                                                                                              



to   make   four   essential   findings   before   it   could   order   an   incompetent   defendant   to  



undergo involuntary medication for the purpose of restoring competency:                                                                                                                                                            (1) "that   



important governmental interests are at stake"; (2) "that involuntary medication will                                                                                                                                                               



significantly further those concomitant state interests"; (3) "that involuntary medication                                                                                                                                     



is necessary to further those interests"; and (4) "that administration of the drugs is                                                                                                                                                                    



medically appropriate, i.e., in the patient's best medical interest in light of his [or her]                                                                                                                                                       

                                                           11      The Court emphasized that this four-part test applied only when  

medical condition."                                                                                                                                                                                                                             



the  trial  court  was  considering  whether  involuntary  medication  was  necessary  to  

                                                                                                                                                                                                                                                        



significantly "further aparticular governmental interest,namely, theinterest in rendering  

                                                                                                                                                                                                                                    

the defendant competent to stand trial."12                                                                                       "[I]f forced medication is warranted for a  

                                                                                                                                                                                                                                                            



different purpose, such as the purposes set out in [ Washington v.] Harper related to the  

                                                                                                                                                                                                                                                       



individual's dangerousness, or purposes related to the individual's own interests where  

                                                                                                                                                                                                                                              



refusal  to  take  drugs  puts  his  health  gravely  at  risk,"  then  whether  medication  is  

                                                                                                                                                                                                                                                         

warranted to restore competency need not even be considered.13  The Court noted that  

                                                                                                                                                                                                               



"courts typically address involuntary medical treatment as a civil matter, and justify it  

                                                                                                                                                                                                                                      



on these alternative, Harper-type grounds," citing as one example Alaska's statutes for  

                                                                                                                                                                                                                                                       



the  appointment  of  guardians  with  the  authority  to  make  medical  decisions  for  

                                                                                                                                                                                                                                                     



                    11                 Id.  at   180-81  (emphases  omitted).    



                    12                 Id.  at   181  (emphasis  omitted).  



                    13                 Id.  at  181-82  (emphasis  in  original)  (citing  Washington  v.  Harper,  494  U.S.  



210,  225-26  (1990)).
  



                                                                                                                            -6-                                                                                                                  7346
  


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

                                        14  

incapacitated persons.                      "If a court authorizes medication on these alternative grounds,                                 



                                                                                                                                                         15  

the need to consider authorization on trial competence grounds will likely disappear."                                                                       



A court that is asked to approve involuntary medication for competency purposes should  

                                                                                                                                                



therefore "ordinarily  determine whether the Government seeks, or has first sought,  

                                                                                                                                              



permission for forced administration of drugs on these other Harper-type grounds; and,  

                                                                                                                                                     

if not, why not."16  

                      



                        Sell thus explicitly contemplates that, despite pending criminal charges, a  

                                                                                                                                                          



state may seek authority to involuntarily medicate a committed defendant for reasons  

                                                                                                                                               



other than the defendant's competency to stand trial.  The standards for granting such  

                                                                                                                                                    



authority in Alaska are well defined:  

                                                    



                        [T]he State must prove - by clear and convincing evidence  

                                                                                                                    

                        - "that the committed patient is currently unable to give or  

                                                                                                                                

                        withhold informed consent regarding an appropriate course  

                                                                                                                        

                        of  treatment"  and  that  the  patient  never  refused  such  

                                                                                                                          

                        treatment   while   previously   competent.                                        If   the   court  

                                                                                                                         

                        determines  that  the  patient  is  not  competent  to  make  the  

                                                                                                                              

                        decision,   the   court   must   next   determine   whether   the  

                                                                                                                             

                        medication is in the patient's best interests.[17]  

                                                                                      



                        Factors the court is required to consider in determining the patient's best  

                                                                                                                              



interests in this context include the "Myers factors":  

                                                                               



            14          Id.   at    182   (citing  former   AS    13.26.105(a)   (2002)   (renumbered   as  



AS   13.26.221(a));  former  AS   13.26.116(b)  (2002)  (renumbered  as  AS   13.26.226(b))).  



            15          Id.  at   183.  



            16          Id.  



            17          In re  Hospitalization   of  Jacob   S.,   384   P.3d   758,   769-70   (Alaska   2016)  



(quoting  Myers  v.  Alaska  Psychiatric  Inst.,   138  P.3d  238,  243  (Alaska  2006));  see  also  

AS  47.30.836(3),  AS  47.30.839(g).  



                                                                           -7-                                                                     7346
  


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

                                      (A)  an explanation of the patient's diagnosis and prognosis,                                                                              

                                      or their predominant                                     symptoms, withandwithoutmedication;                                             



                                      (B)  information about the proposed medication, its purpose,                                                                                    

                                      the method of its administration, the recommended ranges of                                                                                                        

                                      dosages, possible side effects and benefits, ways to treat side                                                                                              

                                      effects,    and    risks    of    other    conditions,    such    as    tardive  

                                      dyskinesia;   



                                      (C)   a review of the patient's history, including medication                                                                            

                                      history and previous side effects from medication;                                                          



                                      (D)   an   explanation   of   the   interactions   with   other   drugs,  

                                      including over-the-counter drugs, street drugs, and alcohol;                                                                                      

                                      and   



                                      (E)  information about alternative treatments and their risks,                                                                                           

                                      side effects, and benefits, including the risks of nontreatment.                                                                                                             [18]  

                                                                                                                                                                                                                            



                                      Additional best interest factors the court is encouraged, but not required,  

                                                                                                                                                                                                                          



to consider - the so-called "Minnesota factors" - include:  

                                                                                                                                                                             



                                      (1) the extent and duration of changes in behavior patterns  

                                                                                                                                                                                        

                                      and mental activity effected by the treatment; (2) the risks of  

                                                                                                                                                                                                         

                                      adverse  side  effects;  (3)  the  experimental  nature  of  the  

                                                                                                                                                                                                    

                                      treatment; (4) its acceptanceby the medical community of the  

                                                                                                                                                                                                       

                                      state; and (5) the extent of intrusion into the patient's body  

                                                                                                                                                                                                

                                      and the pain connected with the treatment.[19]  

                                                                                                                                 



Whether the patient is competent to stand trial - that is, whether a criminal defendant  

                                                                                                                                                                                                                        



is  able  "to  understand  the  proceedings  against  the  defendant  or  to  assist  in  the  

                                                                                                                                                                                                                                          



                   18                In re Hospitalization of Naomi B.                                                             , ___ P.3d ___, Op. No. 7328 at 32, 2019                                                           



WL 167223, at *14 (Alaska Jan. 11, 2019) (quoting                                                                                                   Myers, 138 P.3d at 252);  see also  

AS 47.30.837(d)(2).                                         



                   19                Id. at 33, *14 (quoting Myers, 138 P.3d at 252).  These additional factors  

                                                                                                                                                                                                                                 

are "derived from a ruling of the Supreme Court of Minnesota."   Bigley v.  Alaska  

                                                                                                                                                                                                                        

Psychiatric Inst., 208 P.3d 168, 180 (Alaska 2009); see Price v. Sheppard, 239 N.W.2d  

                                                                                                                                                                                                                              

905, 913 (Minn. 1976).  

                                                                    



                                                                                                                      -8-                                                                                                             7346
  


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

                                                                      20  

defendant's own defense"                                                   - does not appear among these factors and plays no part in                                                                                                  



the best-interests determination relevant to civil commitment.                                                                      



                                    Linda argues, however, that                                                 Sell  anticipates that it will be the criminal court                                                           



deciding whether there are competency or non-competency grounds for involuntary                                                                                                                             



medication - implying that the criminal court would be sensitive to the prospect of                                                                                                                                                   



forced competency.                                      But we do not read                                    Sell  as requiring consolidation of criminal and                                                                    



civil   mental   health   proceedings   in   a   single   court;   indeed,   Sell   did   not   address  



consolidation at all, as the case before the Court involved only the government's request                                                                                                                                



in the criminal proceeding to medicate the defendant in order to render him competent                                                                                                                           

                                     21      Whether there is one court or two, Sell makes clear that its four-part  

to stand trial.                                                                                                                                                                                                    

inquiry is relevant only to a determination of competency in a criminal case.22                                                                                                                                        And, as  

                                                                                                                                                                                                                                      



noted above, the Sell Court's reference to state civil commitment procedures, and its  

                                                                                                                                                                                                                                     



advice that courts look for "alternative, Harper-type grounds" for involuntary medical  

                                                                                                                                                                                                                      



treatment, strongly imply its approvalofthe"separate, confidential civilproceeding"that  

                                                                                                                                                                                                                                   



                                                                                                        23  

Linda argues is inconsistent with Sell.    

                                                                                            



                                    Linda also argues that Alaska's statutes contemplate sequential processes,  

                                                                                                                                                                                                                 



in which a civil commitment proceeding will commence "only after the resolution of  

                                                                                                                                                                                                        



competency in the criminal context."   Linda points out that AS 12.47.110(b) allows  

                                                                                                                                                                                                                         



competency  commitments  for  two  successive  90-day  periods,  after  which,  if  the  

                                                                                                                                                                                                                                  



                  20                AS   12.47.110(a).  



                  21                Sell  v.   United  States,  539  U.S.   166,   169-75  (2003).  



                  22                Id.  at   181-82.  



                  23                Id.  at  182  ("There  are  often  strong  reasons  for  a  court  to  determine  whether  



forced   administration   of   drugs   can   be  justified   on   these   alternative   grounds   before  

turning  to  the  trial  competence  question."  (emphasis  in  original)).  



                                                                                                                  -9-                                                                                                          7346
  


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

 defendant has not been restored to competency, "the charges against the defendant shall                                                                                                    



be dismissed without prejudice, and continued commitment of the defendant shall be                                                                                                              



 governed   by   the   provisions   relating   to   civil   commitments   under   AS   47.30.700   -  

                                                                                               24  But AS 12.47.110, while contemplating the  

 47.30.915" absent unusual circumstances.                                                                                                                                                       



need for sequential proceedings, presents no bar to concurrent proceedings.  The statute  

                                                                                                                                                                                       



 envisions an end to a competency commitment that has failed to reach its goal: restoring  

                                                                                                                                                                                  



 the defendant to competency for purposes of standing trial in a criminal case. The statute  

                                                                                                                                                                                        



recognizes the possibility that the defendant should remain hospitalized for reasons  

                                                                                                                                                                                    



justifying civil commitment: that is, that the defendant "is mentally ill and that condition  

                                                                                                                                                                                 



 causes the [defendant] to be gravely disabled or to present a likelihood of serious harm  

                                                                                                                                                                                           

 to self or others."25  But incompetency to stand trial and mental illness for purposes of  

                                                                                                                                                   

                                                                                                                      26       Commitment  to  treat  the  two  

 civil  commitment  may  have  coexisted  all  along.                                                                                                                                       

                                                                                                       



 conditions may be sequential, or the commitments may be concurrent or overlap if each  

                                                                                                                                                                                            



 is independently justified. Indeed, we would not expect API to have to wait until a court  

                                                                                                                                                                                         



has decided under AS 12.47.110 that a defendant's competency cannot be restored  

                                                                                                                                                                                  



before petitioning for civil commitment based on the patient's serious mental illness,  

                                                                                                                                                                                      



risking a gap in the authority to provide necessary treatment.  

                                                                                                                                              



                24             AS12.47.110(b). Thecourt                                       may extend thecommitmentperiodfor                                                      another  



 six months if "the defendant is charged with a crime involving force against a person and                                                                                                    

 the court finds that the defendant presents a substantial danger of physical injury to other                                                                                              

persons   and  that  there   is   a   substantial   probability   that   the   defendant   will   regain  

 competency within a reasonable period of time."                                                                 Id.  



                25             AS 47.30.700(a).  

                                        



                26             They are sometimes presumed to be coextensive:  "A defendant charged  

                                                                                                                                                                                    

with a felony and found to be incompetent to proceed under this section is rebuttably  

                                                                                                                                                                               

presumed to be mentally ill and to present a likelihood of serious harm to self or others  

                                                                                                                                                                                        

 in proceedings under AS 47.30.700 - 47.30.915."  AS 12.47.110(e).  

                                                                                                                               



                                                                                               -10-                                                                                       7346
  


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

                                  Nonetheless,   based   on   her   view   that   the   State   may   commence   civil  



 commitment   proceedings   only   when   "the   criminal   court's   jurisdiction   over   the  



 defendant's commitment expires," Linda asks us to hold that the State must seek civil                                                                                                                        



 relief "in the criminal court that ordered the defendant committed." A problem with this                                                                                                                        



 approach is that the criminal court - in this case the district court - may not have the                                                                                                                        



jurisdiction to order the necessary treatment. Only the civil commitment statutes address                                                                                                              



 involuntary medication, and under those statutes only the superior court may authorize                                                                                                           



 it.    Alaska Statute 47.30.839 allows "[a]n evaluation facility or designated treatment                                                                                                        



 facility [to] seek court approval for administration of psychotropic medication to a                                                                                                                                 



patient by filing a petition with the court."                                                                   For purposes of that provision, " 'court'                                             

                                                                                                 27       The  superior  court  - the  only  court  with  

 means   a   superior   court   of   the   state."                                                                                                                                                           



jurisdiction to do so - must be able to entertain an involuntary medication petition  

                                                                                                                                                                                                      



 despite  the  fact  that  a  district  court  has  committed  the  defendant  for  competency  

                                                                                                                                                                                          



purposes.  



                                  Linda   also   contends   that   allowing   parallel   competency   and   civil  

                                                                                                                                                                                                           



 commitment proceedings "may undermine the resolution of competency in the criminal  

                                                                                                                                                                                                     



 matter and cause other practical problems."  She argues that medicating a defendant as  

                                                                                                                                                                                                                    



 authorized in a civil commitment proceeding "affects the defendant's mental state and  

                                                                                                                                                  



 the  defendant's  competency  in  the  criminal  case";  she  states  that  "[t]reatment  for  

                                                                                                                                                                                                                 



 restoration is not separate and distinct from treatment for general wellbeing."  But she  

                                                                                                                                                                                                     



provides  no  medical  support  for  these  statements,  either  generally  or  as  to  Linda  

                                                                                                                                                                                                         



 specifically. Treatment directed toward the symptoms of mental illness may or may not  

                                                                                                                                                                                                                 



 affect  a  defendant's  competency  to  stand  trial.                                                                                Sell  specifically  recognizes  the  

                                                                                                                                                                                                                



                 27  

                                                                                 

                                  AS 47.30.915(3).  



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

                         28                                                          29  

difference,                   as do Alaska's statutes.            



                                                                                                                                                                                                  

                               Finally, Linda argues - though without significant legal analysis - that  



                                                                                                                                                                                        

her rights "to assistance of counsel and due process in the criminal case[]" are violated  



                                                                                                                                                                                             

if  the  State  is  allowed  to  initiate  a  separate  civil  commitment  case  without  some  



                                                                                                                                                                                                  

guarantee that both the criminal court and her defense counsel in the criminal case will  



                                                                                                                                                                                               

be notified of it. She argues that when the criminal court is considering whether to order  



                                                                                                                                                                                                    

medication to restore competency, it needs to know about "medication administered for  



                                                                                                                                                                                                    

other purposes."  The question is academic in this case, since, as discussed above, the  

                                                                                                                                                                30       In  any  event,  

                                                                                                                                                                                           

district  court  lacks  jurisdiction  to  order  involuntary  medication. 



competency  commitments,  civil  commitments,  and  authorizations  to  involuntarily  

                                                                                                                                                                           



medicate a patient all require evidentiary hearings at which the petitioner - typically the  

                                                                                                                                                                                                    



                28             Sell, 539 U.S. at 182 (recognizing that "medical experts may find it easier                                                                                  



to provide an informed opinion about whether, given the risk of side effects, particular                                                                                             

drugs   are   medically   appropriate   and   necessary   to   control   a   patient's   potentially  

dangerous behavior (or to avoid serious harm to the patient himself) than to try to                                                                                                                   

balance harms and benefits related to the more quintessentially legal questions of trial                                                                                                         

fairness and competence");  id. at 185 ("Whether a particular drug will tend to sedate a                                                                                                

defendant, interfere with communication with counsel, prevent rapid reaction to trial                                                                                                            

developments, or diminish                                          the ability to express emotions are matters important in                                                                          

determining   the   permissibility   of   medication   to   restore   competence,   .   .   .   but   not  

necessarily relevant when dangerousness is primarily at issue.").                                                                                        



                29             See  AS  12.47.110(d)  ("A  defendant  receiving  medication  for  either  a  

                                                                                                                                                                                                       

physical  or  a  mental  condition  may  not  be  prohibited  from  standing  trial,  if  the  

                                                                                                                                                                                                  

medication either enables the defendant to understand the proceedings and to properly  

                                                                                                                                                                                       

assist in the defendant's defense or does not disable the defendant from understanding  

                                                                                                                                    

the proceedings and assisting in the defendant's own defense.").  

                                                                                                                              



                30             See AS 47.30.839(b) (authorizing petitions for involuntary medication to  

                                                                                                                                                                                                       

be filed in court); AS 47.30.915(3) (defining "court" as "superior court").  

                                                                                                                                                           



                                                                                                 -12-                                                                                          7346
  


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

                                                                    31  

State   -   bears  the   burden   of   proof.                              We   are   given   no   reason   to   believe   that   the  



                                                                                                                32  

petitioner's   witness   - often                        a   treating   healthcare   provider                                                               

                                                                                                                    - would  not  be  in  a  



                                                                                                                        

position  to  testify  about  all  medications  and  other  treatments  being  administered,  



                                   

regardless of their purpose.  



                                                                                                                                                           

                        As for notice to defense counsel, Linda argues generally that her rights to  



                                                                                                                                                        

counsel and due process will be at risk unless "notice of the commitment proceeding, and  



                                                                                                                          

an opportunity to be heard, [are] provided to the criminal defense attorney."  She asks  



                                                                                                                                                

that we at least impose a requirement of formal notice, pointing out that defense lawyers  



                                                                                                                                         

cannot depend on their clients for information about parallel proceedings:  "[C]riminal  



                                                                                                                                              

defendants frequently object personally to being found incompetent and may not want  



                                                                                                                                                

their criminal defense attorney to know about a civil commitment proceeding." Linda's  



                                                                                                                                                  

counsel in the civil case argued that she and Linda's criminal defense lawyer lacked  



                                                                                                                                                 

access to the full records of each other's cases, though she conceded they had spoken  



                                                                                                                                                           

about the civil commitment.  Lack of notice to defense counsel was thus not at issue in  



                                                                                                                                                       

this case.  We decline to decide a constitutional challenge that is purely theoretical and  



            31          See  AS 12.47.110(a), (b) (competency hearings); AS 47.30.735 (30-day                                                   



commitment                  hearings);              AS        47.30.755(a)                 (90-day             commitment                  hearings);  

AS 47.30.839(e)-(g) (court-ordered administration of medication hearings).                                                                   



            32          See, e.g., In re Hospitalization of Naomi B., ___ P.3d ___, Op. No. 7328  

                                                                                                           

at  3-4,  2019  WL  167223,  at  *1-2  (Alaska  Jan.  11,  2019)  (involving  involuntary  

                                                                                                                                        

commitment based in part on testimony of treating psychiatrist); In re Hospitalization  

                                                                                                                                  

of Paige M., S-16834, 2018 WL 6718593, at *1 (Alaska Dec. 21, 2018) (involving  

                                                                                                                                           

involuntary   commitment   based   on   testimony   of   treating   psychologist);  In   re  

                                                                                                                                                        

Hospitalization  of  Darren  M.,  426  P.3d  1021,  1023-24  (Alaska  2018)  (involving  

                                                                                                                                          

involuntary  commitment  based  in  part  on  testimony  of  treating  psychiatric  nurse  

                                                                                                                                                   

practitioner); In re Hospitalization of Mark V., 375 P.3d 51, 59 (Alaska 2016) (involving  

                                                                                                                                           

involuntary commitment based on testimony of treating psychiatrist).  

                                                                                                       



                                                                           -13-                                                                     7346
  


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

would have no effect on Linda's own rights.                            33  



                                                                                                                                     

                      In sum, the superior court was the proper court for commencement of civil  



                                                                                                                                   

proceedings for commitment and involuntary medication, and the court did not err when  



                                                                                                                        

it denied Linda's motions to stay or dismiss the proceedings because of the competency  



                                                           

commitment ordered by the district court.  



                                                                                                                               

           B.	        The Superior Court Made An Independent Determination Of Linda's  

                                                                                                                     

                      Best   Interests   And   Did   Not   Err   By   Authorizing   Involuntary  

                      Medication.  



                                                                                                                                 

                      In Myers v. Alaska Psychiatric Institute we held that the right to refuse  



                                                                                                                                     

psychotropic medication is fundamental under the Alaska Constitution's liberty and  



                                34  

                                                                                                                                   

privacy protections.                Therefore, "before [the] state may administer psychotropic drugs  



                                                                                                                        

to a non-consenting mentally ill patient in a non-emergency setting, an independent  



                                                                                                                                      

judicial  best  interests  determination  is  constitutionally  necessary  to  ensure  that  the  



                                                                                                                                35  

                                                                                                                                      

proposed treatment is actually the least intrusive means of protecting the patient."                                                The  



                                                                                                                                 

court must find by clear and convincing evidence that the patient is incapable of giving  



                                                                                                                                    

informed consent  and  that  the administration  of medication  is in  the patient's best  



                                                                                                                   36  

                                                                                                                        

interests "considered in light of any available less intrusive treatments." 



                                                                                                                              

                      Linda argues that the superior court erred when it found that API satisfied  



                                                                                                                                     

its burden of proving that the involuntary administration of Thorazine was in her best  



                                                                                                                                        

interests. Specifically, she contends that the superior court "failed in its duty to make an  



           33         See  State  v.  Am.  Civil  Liberties  Union  of  Alaska ,  204  P.3d  364,  374  (Alaska  



2009)   (declining  to   decide   constitutional   challenge   "in   a  hypothetical setting"  where  

risks  of  doing  so  outweighed  hardships  to  plaintiffs  if  issue  was  left  undecided).  



           34         138 P.3d 238, 246-48 (Alaska 2006).  

                                                                        



           35        Id. at 250.  

                                



           36        Id. at 252-53.  

                                              



                                                                  -14-	                                                            7346
  


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

independent   judicial   determination,   instead   deferring   to   the   judgment   of   Linda's  



treatment providers"; that the court erred in finding that API considered alternative                                                                                                                                                                                                                                                                                                          



treatments; and that the court "erred in discounting Linda's concerns over Thorazine                                                                                                                                                                                                                                                                                                             



based on her pregnancy and rejecting out of hand the option of not administering any                                                                                                                                                                                                                                                                                                                                               



medication."   Our review of the record, however, leads us to conclude that the superior                                                                                                                                                                                                                                                                                                                     



court made an independent best interests determination and that its findings were not                                                                                                                                                                                                                                                                                                                                                



 erroneous.      



                                                                    First, the record sufficiently demonstrates that the superior court made its                                                                                                                                                                                                                                                                                          



own "independent judicial determination" that the administration of medication was in                                                                                                                                                                                                                                                                                                                                                       



Linda's   best   interests.     The   court   considered   the   testimony   of   the   court   visitor,  



Dr. Alexander, and Linda herself in deciding that Linda was incapable of giving or                                                                                                                                                                                                                                                                                                                                                        



withholding informed consent.                                                                                                                                      The court gave deference to Dr. Alexander's "very                                                                                                                                                                                                    



thoughtful" opinion of Linda's treatment, deciding that "great care ha[d] been taken . . .                                                                                                                                                                                                                                                                                                                                                  



to determine and propose medications thatsheha[d]previouslyexperienced                                                                                                                                                                                                                                                                                                                   without side   



 effect[s] and that involve[d] the least amount of risk possible to [Linda] and to her                                                                                                                                                                                                                                                                                                                                              



pregnancy while effectively treating [her] current condition."                                                                                                                                                                                                                                                         The court was entitled to                                                                                            



rely on the doctor's expert testimony when reaching its own independent conclusion                                                                                                                                                                                                                                                                                                            

 about Linda's best interests.                                                                                                                 37  



                                                                    The record also supports the independent conclusion that there were no less  

                                                                                                                                                                                                                                                                                                                                                                                                                                     



intrusivealternativestoinvoluntary medication. Dr. Alexander explained why Thorazine  

                                                                                                                                                                                                                                                                                                                                                                                                     



was the best option; he opined that isolation was the only possibly effective alternative  

                                                                                                                                                                                                                                                                                                                                                                                                



but  that,  unlike  medication,  it  would  not  address  Linda's  persistent  delusions  and  

                                                                                                                                                                                                                                                                                                                                                                                                                                 



                                  37                                See id.                            at 250 (observing that the best interests determination "certainly                                                                                                                                                                                                                          



must be fully informed by medical advice received with appropriate deference, [though]                                                                                                                                                                                                                                                                                                                     

in the final analysis the answer must take the form of a legal judgment that hinges not on                                                                                                                                                                                                                                                                                                                                                

medical expertisebuton                                                                                                    constitutional principlesaimed                                                                                                                              at protectingindividualchoice").                                                                                    



                                                                                                                                                                                                                  -15-                                                                                                                                                                                                         7346
  


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

paranoia.   The court did not err by accepting Dr. Alexander's opinion that medication                                                                                                                                                                                                                                                                                                                                         



was necessary to effectively treat Linda and that not medicating her "would lead to                                                                                                                                                                                                                                                                                                                                                                                              



greater suffering, mental, emotional, but also physical . . . for [Linda] and for her child."                                                                                                                                                                                                                                                                                                                                                                                                   



                                                                          Finally, the record shows that the superior court considered the risks of                                                                                                                                                                                                                                                                                                                              



Thorazine and the reasonableness of Linda's pregnancy-based objection to it. The court                                                                                                                                                                                                                                                                                                                                                                           



relied in part on its direct observations of Linda during the hearing to discount her fears                                                                                                                                                                                                                                                                                                                                                                        



 about the side effects and to give more credence to Dr. Alexander's testimony about                                                                                                                                                                                                                                                                                                                                                                         

them.   We defer to the superior court's credibility determination.                                                                                                                                                                                                                                                                                                    38  



V.                                   CONCLUSION  



                                                                          We AFFIRM the orders of the superior court asserting its jurisdiction and  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



granting the petition for involuntary medication.  

                                                                                                                                                                                                          



                                     38                                   See In re Hospitalization of Jacob S.                                                                                                                                                                        , 384 P.3d 758, 769 & n.36 (Alaska                                                                                                                         



2016) (observing that "we will not question on appeal" superior court's finding that                                                                                                                                                                                                                                                                                                                                                                                   

respondent was not credible in testifying that "he would be willing to take medication                                                                                                                                                                                               

 and participate in outpatient treatment if released from API").                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                     -16-                                                                                                                                                                                                                           7346
  

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