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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Necessity for the Hospitalization of: Arthur A. (2/7/2020) sp-7427

In the Matter of the Necessity for the Hospitalization of: Arthur A. (2/7/2020) sp-7427

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

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                    

In  the  Matter  of  the  Necessity  for  the                       )  

Hospitalization  of                                                 )    Supreme  Court  No.  S-17210  



ARTHUR A.                                                                                                                        

                                                                    )    Superior Court No. 4FA-18-00446 PR  



                                                                    )    O P I N I O N  



                                                                    )   No. 7427 - February 7, 2020  


                     Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                     Fourth Judicial District, Fairbanks, Michael A. MacDonald,  



                     Appearances:  Kelly R. Taylor, Assistant Public Defender,  


                     and Beth Goldstein, Acting Public Defender, Anchorage, for  


                     Arthur  A.          Laura  E.  Wolff,  Assistant  Attorney  General,  


                     Anchorage,  and  Kevin  G.  Clarkson,  Attorney  General,  


                     Juneau, for State of Alaska.  


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


                     and Carney, Justices.  


                     WINFREE, Justice.  



                     Arespondentappeals a30-day involuntary commitment order entered after  


the superior court determined he was mentally ill, posed a risk of harm, and was gravely  


disabled.  He contends the court erred by refusing to allow him to represent himself at  


the  commitment  hearing.                   We  hold  that  a  respondent  in  involuntary  commitment  


proceedings has at least an implied statutory right to self-representation, although that  

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

right   is   not   absolute.     If   a   respondent   clearly   and   unequivocally  invokes   the   self- 

representation right, the superior court must hold a preliminary hearing and consider                                                                             

factors we outlined in                          McCracken v. State                           to determine whether self-representation       

                                      1  Becausetherespondent's self-representation request in this casewas  

should beallowed.                                                                                                                                                           

denied without adherence to the McCracken  framework, we conclude that the 30-day  


commitment order must be vacated.  




              A.            Facts Leading To Involuntary Commitment  


                            After attending Stanford University for undergraduate education, then-25- 


year-old Arthur A.2  moved to Fairbanks in January 2018 to pursue additional education  


at University of Alaska Fairbanks (UAF).  Over the next few months Arthur twice went  


to Fairbanks Memorial Hospital (FMH) for unspecified reasons, but he did not meet  


FMH's "involuntary hold criteria" either time and was not admitted.3  


                            In August Arthur was taken to a local correctional facility following an  


"altercation"  in  the  community.                                        There  is  little  admissible  evidence  in  the  record  


              1             518 P.2d 85 (Alaska 1974). We held in that case that the trial court should:                                                                             

(1)  "ascertain whether a [respondent] is capable of presenting his allegations in a rational                                                                      

and coherent manner"; (2) ensure that the respondent "understands precisely what he is                                                                                          

giving up by declining the assistance of counsel"; (3) explain the "advantages of legal   

representation"   to   the   respondent   "in   some   detail";   and   (4)   "determine   that   the  

[respondent]   is   willing   to   conduct   himself   with   at   least   a   modicum   of   courtroom  

decorum."   Id.  at 91-92.   

              2             We use a pseudonym to protect the respondent's privacy.  


              3             FMH's  referenced  "involuntary  hold  criteria"  apparently  relates  to  


AS 47.30.710(b), providing that a mental health professional may hospitalize a person  


"on an emergency basis" if the person either is "mentally ill and that condition causes the  


[person] to be gravely disabled or to present a likelihood of serious harm to self or  


others" or otherwise "is in need of care or treatment."  


                                                                                       -2-                                                                               7427

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

regarding this incident other than vague references to a disturbance at a fast-food chain                                                               

restaurant.    Arthur apparently became "agitated and disorganized"; he was taken to                                                                          



FMH,          where a medical professional determined he met involuntary hold criteria.  An  


FMH staff member applied for an ex parte order to involuntarily hospitalize Arthur for  




                         FMH's  staff  member  alleged  that  Arthur  had  been  diagnosed  with  


"schizoaffective disorder, bipolar type" and that he previously had been hospitalized in  


California.             She stated that Arthur  was mentally  ill - noting  that he was "manic,  


impulsive, and highly energetic" - and had disorganized thoughts.  She further stated  


that Arthur was gravely disabled or likely to cause serious harm to himself or others,  


noting that he indicated he was president of the United States and owned multiple sports  


franchises, banged on windows and tapped his fists, refused to use the telephone for  


privacy reasons, could not choose his meals, removed his pants in front of staff, and  


clogged the toilet with trash. She noted that FMH staff had administered three "agitation  


sets"  to  Arthur  since  his  arrival  "to  calm  his  irri[t]ability  and  mania."                                                            (Arthur's  


psychiatrist  later  testified  that  "agitation  sets"  are  medications  given  for  "acute  


dangerousness.")  She stated that, taken together, these behaviors indicated "abnormal  


thinking  and  perception  .  .  .  caus[ing]  [Arthur]  to  become  agitated  and  aggressive  

            4            Alaska   Statute   47.30.705   authorizes   peace   officers   and   certain   mental  

health professionals to detain and deliver a person to the nearest appropriate facility for                                                                  

evaluation on an emergency basis.                     

             5           AlaskaStatute47.30.700 sets out procedures for obtaining an ex partecourt  


order for the initial involuntary hospitalization of a person alleged to be mentally ill.  A  


mental  health  professional  who  has  performed  an  emergency  examination  may  


hospitalize a person in an emergency under AS 47.30.710(b) and must "apply for an ex  


parte order authorizing hospitalization for evaluation" if an order has not  yet  been  



                                                                              -3-                                                                       7427

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

(verbally)" and that he was "creating an unsafe environment for others" because he had                                                                                                                                                     

"los[t] touch with reality."                                                 

                                      The   superior   court   authorized   Arthur's   hospitalization   for   evaluation,  

finding probable cause to believe he was both likely to cause serious harm to others,                                                                                                                                            

based on "abnormal thinking" making him "extremely agitated and posturing," and                                                                                                                                                           

gravely disabled, based on his inability "to manage affairs safely."                                                                                                   

                   B.                 30-Day Commitment Petition And Hearing                                                                    

                                      Two days later Arthur's FMH psychiatrist and another FMH mental health                                                                                                                        


professional filed a 30-day involuntary commitment petition.                                                                                                                                                                    

                                                                                                                                                                                 The psychiatrist alleged  


that Arthur presented as "actively psychotic" and that Arthur believed he had invented  


the internet and had one trillion dollars.  The psychiatrist noted that Arthur was manic,  


slept poorly, and had poor physical boundaries. She also noted that Arthur was refusing  


medications and becoming "increasingly agitated." She believed that Arthur was "likely  

                                                                                                                                                                                                            7    The superior  


to cause harm to himself[] or others," requiring commitment for 30 days. 

court held a hearing on the petition the following day.8  


                                      Arthur's attorney first informed the court that Arthur wanted to represent  


himself during that hearing.  The court responded:  "[B]ased on the petition, the [c]ourt  


would  find  that  the  responde[nt]  is  not  fit  to  represent  himself."                                                                                                                         The  court  asked  


                   6                  Alaska Statute 47.30.730(a) allows specified mental health professionals                                                                                                 

to petition for a person's 30-day involuntary commitment and establishes procedures for                                                                                                                                                      

the petition.   

                   7                  See AS 47.30.730(a)(1) (requiring that petition for 30-day commitment  


allege respondent is mentally ill and, as a result, is (1) likely to cause harm to self or  


others, or (2) gravely disabled).  


                   8                  See AS 47.30.715 (providing court shall set time for commitment hearing  


to be held "within 72 hours after the respondent's arrival" at an evaluation facility);  


AS 47.30.735 (establishing commitment hearing procedures).  


                                                                                                                       -4-                                                                                                             7427

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


Arthur's attorney whether further inquiry was required; the attorney responded that she  


did not believe so.  Arthur then interrupted the court, stating that he "would like to [be]  


evaluated by a psychiatrist to determine [his] fitness."  The court responded that "based  


on some testimony, [it would] explore further whether or not that [was] a reasonable  




                    The State then called its only witness, Arthur's treating psychiatrist.  She  


testified that she had spoken with Arthur about his desire to represent himself.  She said  


Arthur had indicated that a law degree was unnecessary and that he understood the  


meaning of exculpatory and incriminating evidence.  


                    The psychiatrist also testified more generally about Arthur's mental illness  


and  symptoms.             She  stated  that  Arthur  met  the  criteria  for  bipolar  disorder.                             She  


discussed the likely cause of Arthur's current episode, noting that she had been told his  


medications recently had changed and that he had stopped taking them, causing him to  


become "destabilized."  She stated that she had met with Arthur both that day and the  


previous day and that he was "grandiose," "pressured," "disorganized," "aggressive,"  


and "ha[d] poor insight into his condition."  She cited examples of irrational thought  


similar to those described in the commitment petition, including that he believed he  


possessed large sums of money, invented the internet, and owned AT&T.  


                    The psychiatrist testified that Arthur had exhibited aggressive behaviors.  


She stated that "he made one effort to push through the nursing station door"  and  


required security staff on multiple occasions. She stated that during his first day at FMH  


he had required five "agitation sets" - medications given for "acute dangerousness" -  


and that "he was so agitated" medications had to be forcibly administered. Although he  


hadnot required emergency medication sincethat day, sheexpected his symptoms would  


worsen if untreated, and "he would either find himself again in conflict with the legal  

                                                                -5-                                                         7427

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

system in the community" or there would be "more dire consequences, such as harming                                                                                                                                 

someone or someone harming him because of his behaviors."                                                                                                                

                                    The psychiatrist said she would feel unsafe with Arthur in the community,                                                                                              

"based on his symptoms, his poor insight into his symptoms, and . . . the information that                                                                                                                                       

he, in the community, was in fact acting dangerously." She also said she believed Arthur                                                                                                                                 

likely would have hurt someone at FMH but for the precautionary steps undertaken; she                                                                                                                                             

believed that had he behaved similarly while outside FMH, "the results would have been                                                                                                                                        

significantly different and more dire."                                                                  And although the commitment petition was not                                                                             

                                                                       9  the psychiatrist testified that she did not feel Arthur could  

based on grave disability,                                                                                                                                                                                                 

survive safely in the community if untreated.  She cited his "very haphazard way" of  


eating that required staff monitoring of his food intake and her concern about "his ability  


to advocate for himself appropriately."  


                                    At the end of the psychiatrist's direct testimony, the superior court stated,  


"with the benefit of that direct testimony," it would "deny, finally, [Arthur's] application  


to represent himself."  On cross-examination the psychiatrist testified that she was not  


aware of any criminal charges pending against Arthur.  She stated that although Arthur  


had not taken medications in over 24 hours, he still could be under their "lingering  


effect." She acknowledged that Arthur had not assaulted or attempted to assault anyone  


at FMH, that he ate when food was provided, and that she could refer him to medical  


services outside FMH.  


                                    Arthur then testified on his own behalf.  He said he could not recall the  


dates or precise classes he was registered to take at UAF.  But Arthur also said he lived  


in a UAF dormitory near fire and police stations, had access to both public transportation  


and ride-sharing services, already had purchased a meal plan that soon would become  

                  9                 See  AS  47.30.915(9)  (defining  "gravely  disabled").  

                                                                                                                  -6-                                                                                                                   7427  

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


active, and had winter clothing.  He stated that he was on Medicaid but was unwilling  


to continue seeing the therapist he previously had seen.  Arthur denied attempting to  


push through the nursing station door,  and he stated that he had never wanted to hurt  


himself or others: "I've never even hurt a fly, I've never had any thoughts of violence."  


                    The court asked Arthur a series of questions about events leading to the  


proceeding. Arthur repeatedly asserted, "I do not recall." When pressed further, Arthur  


appeared confused, asking about the location where police had picked him up, whether  


the fast-food chain had a restaurant in Fairbanks, whether his card had cleared if he was  


there, who had claimed he had been there, whether he had said under oath that he had  


been there, and why the hospital had been there.  


          C.        Superior Court Findings  


                    The superior court made oral findings at the end of the hearing and granted  


the commitment petition.  The court found that Arthur had been diagnosed with bipolar  


disorder and, as a result of the disorder, that he presented a danger to both himself and  


the community.  The court stated that Arthur's being brought to FMH by police was  


"evidence of his agitated state" and that his behaviors "resulted in public disturbances."  


The court found that the five agitation sets Arthur initially had been administered were  


"evidence that [his] behavior [was] dangerous and likely to endanger others, and in the  


response of the others, danger to himself."   The court stated that based on Arthur's  


history and the hearing testimony, "there is also reason to believe that the current mental  


condition is impairing [his] ability to behave safely in the community." The court issued  


a written order that same day, finding that Arthur was mentally ill and, as a result, both  


likely to cause harm to himself or others and gravely disabled.  


                    This appeal followed.  

                                                                -7-                                                         7427

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

 III.	            DISCUSSION:                                           IT          WAS    ERROR    TO    DENY    ARTHUR'S    SELF- 


                   SEPARATE INQUIRY.   


 and statutory rights to self-representation                                                                  10  


                                                                                                                   and that the superior court erred by failing to  


 conduct a proper inquiry into his competence for self-representation prior to taking  


 evidence for the commitment petition.  The State does not contest that a respondent has  


 therighttoself-representationin aninvoluntary commitment proceeding, insteadarguing  


 that the superior court did not abuse its discretion by determining Arthur was not fit to  



 represent himself. 


                  A.	               Implicit Statutory Right To Self-representation  


                                    Our McCracken v. State holding extended the right to self-representation,  



 traditionally limited to criminal prosecutions.                                                                                In McCracken we held that a petitioner  


 in a post-conviction relief proceeding has a constitutional right to self-representation,  

                   10               We   decide   de   novo   questions   of   constitutional   interpretation,   In   re  

Hospitalization of Linda M.                                               , 440 P.3d 168, 171 (Alaska 2019), adopting "the rule of law                                                                                         

 that is most persuasive in light of precedent, reason, and policy."                                                                                                                State v. Ketchikan      

 Gateway Borough                                  , 366 P.3d 86, 90 (Alaska 2016) (quoting                                                                          Se. Alaska Conservation        

 Council v. State                            , 202 P.3d 1162, 1167 (Alaska 2009)).                                                                        "We apply our independent   

judgment to the interpretation of Alaska statutes and will interpret statutes 'according to                                                                                                                                        

 reason, practicality, and common sense, taking into account the plain meaning and                                                                                                                                            

 purpose of the law as well as the intent of the drafters.' "                                                                                         In re Hospitalization of Tracy                                     

 C., 249 P.3d 1085, 1089 (Alaska 2011) (citation omitted) (quoting                                                                                                                  Native Vill. of Elim                    

 v.  State, 990 P.2d 1, 5 (Alaska 1999)).                                           

                   11               "[W]e review decisions limiting or denying self-representation for abuse  


 of discretion."  Barry H. v. State, Dep't of Health & Soc. Servs., Office of Children's  


 Servs., 404 P.3d 1231, 1235 (Alaska 2017).  


                   12               518 P.2d 85, 91-92 (Alaska 1974).  


                                                                                                                 -8-	                                                                                                      7427

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


although that right is not absolute.                                                    Concluding that self-representation in a post-                                                   

conviction hearing is a fundamental right under the "retained rights" provision of article                                                                                             

I, section 21 of the Alaska Constitution, we held that the right to self-representation had                                                                                                  

                                                                                                                                                       14      In  reaching  this  

been   "long   established"   and   was   of   "fundamental   importance."                                                                                                                  

determination, we looked to the value of individual autonomy and freedom of choice:  


"[T]he opportunity to determine whether to present one's own case or to be represented  


by  appointed  counsel  is  of  paramount  importance  to  the  individual.                                                                                             Under  some  


circumstances,  [the individual]  may  indeed  be the only  person  who  will forcefully  


advance arguments in an unpopular cause."15                                                                 We thus concluded that when "liberty  


itself is at stake," an  individual's right to self-representation "should not lightly be  



                              Wehaveadopted McCracken 's self-representation analysisin another civil  


context.               In  Barry  H.  v.  State,  Department  of  Health  & Social  Services,  Office  of  


                                             17  we considered a parent's self-representation right in a Child in  

 Children's Services                                                                                                                                                                            


Need of Aid (CINA) case.  But rather than looking to constitutional origins of the right  


               13             Id.  at 88-92.   

               14             Id.  at 91 ("[T]he enumeration of rights in this constitution shall not impair                                                                           

or deny others retained by the people." (quoting Alaska Const. art. 1  21)).                                                                                  

               15             Id.  


               16             Id.  One year after McCracken the United States Supreme Court held in  


Faretta v. California, 422 U.S. 806, 818-21 (1975), that the Sixth Amendment to the  


United   States   Constitution   grants   criminal   defendants,   through   implication,   a  


constitutional right to self-representation.  


               17             404 P.3d 1231 (Alaska 2017).  


                                                                                               -9-                                                                                        7427

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


to self-representation, as we did in                                       McCracken,   we looked to the Alaska CINA Rules                                                   

themselves: Rule 12(c) provides that a trial court "shall accept a valid waiver of the right                                                                                    

to counsel by any party if the court determines that the party understands the benefits of                                                                                           

                                                                                                           19       We  held  that  the  CINA  Rules  

counsel  and  knowingly   waives   those   benefits."                                                                                                                       

incorporate the McCracken standard into CINA proceedings.20  


                             We have not yet directly addressed whether the right to self-representation  


extends to  involuntary  commitment proceedings.                                                                 But a respondent's right to  self- 


representation  is  implicit  in  the  statutory  framework.                                                                   Alaska  Statute  47.30.725,  


enumeratingarespondent's rights oncedetainedfor an involuntarycommitment hearing,  


recognizes a respondent's right to an attorney.21                                                         Subsection (d) specifically provides:  


"The respondent has the right to be represented by an attorney, to present evidence, and  


to cross-examine witnesses who testify against the respondent at the hearing."   The  


enumerated rights in AS 47.30.725(d) are the respondent's rights, not obligations forced  


on the respondent. And nothing in the statutory language suggests that the respondent's  


rights to present evidence and cross-examine witnesses exist only if the respondent is  


represented by counsel.  Subsection (d) instead provides a respondent defense rights  


which the respondent may choose to exercise through representation by counsel.22  


                             Moreover, AS 47.30.725(f) may contemplate an involuntary commitment  


respondent's self-representation: "A respondent, if represented by counsel, may waive,  


              18             518 P.2d at 91.           

              19            Id.  at 1234-35 (quoting CINA Rule 12(c) ("Waiver of Right to Counsel")).                                                            

              20            Id.  

              21            See  AS 47.30.725(d).   

              22            Id.  

                                                                                        -10-                                                                                  7427

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

orally or in writing, the 72-hour time limit on the 30-day commitment hearing . . . ."                                                                                           

(Emphasis   added.)     The   phrase   "if   represented   by   counsel"   further   implies   that  

involuntary   commitment   respondents,   in   at   least  some   circumstances,   will   not   be  

represented by counsel at all stages of a proceeding and thus will be self-represented.                                                     

                           In a recent unpublished decision,                                    In re Hospitalization of Brandi A.                                     , we   


recognized that an involuntary commitment respondent represented herself on appeal.                                                                                              

In a sua sponte order prior to appellate oral argument, we remanded the case for the  


superior court "to hold a hearing to determine whether [the respondent] wants appointed  


counsel to represent her on appeal, and, if not, whether she should be permitted to  


represent herself on appeal."24                                We directed the superior court to consider the standards  


discussed in McCracken and Barry H.25  The superior court held a representation hearing  


and determined that the respondent could represent herself, and we allowed her to do so  


in the appeal.26  


                           Accordingly, we conclude the involuntary commitment statutes reflect that  


respondents have the right to self-representation, although that right is not absolute. We  


therefore do not reach Arthur's constitutional argument on this issue.  


              B.           The McCracken Standard In Involuntary Commitment Hearings  


                           McCracken prescribes a three-step inquiry to determine whether a post- 


conviction relief petitioner may be self-represented. First, the trial court must "ascertain  


whether [the petitioner] is capable of presenting . . . allegations in a rational and coherent  


              23           No.  S-16750,  2019  WL  324926,  at  *1  (Alaska  Jan.  23,  2019).  

              24           In  re  Brandi  A. ,  No.  S-16750  (Alaska  Supreme  Court  Order,  June  7,  2018).  

              25           Id.  

              26           In  re  Brandi  A. ,  No.  S-16750,  2019  WL  324926,  at  *1;  (Alaska  Supreme  

Court  Order  June  25,  2018).  

                                                                                    -11-                                                                             7427

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


manner."              Second, the court must "satisfy [itself] that the [petitioner] understands                               


precisely what [the petitioner] is giving up by declining the assistance of counsel."                                                                 

This step requires "demonstrat[ing] that [the petitioner] understands the benefits of  


counsel and knowingly waives the same"; if the court is not "completely satisfied that  


the [petitioner] is capable of pro se representation," it is within the court's "sound  


discretion  to  insist  that  the  [petitioner]  accept  consultative  assistance  by  appointed  


counsel."29   Finally, the court must "determine that the [petitioner] is willing to [present  


evidence and argument] . . . with at least a modicum of courtroom decorum."30                                                                 We  


 subsequently have concluded that these inquiries must "appear affirmatively on the  


record,"31  but a negative finding under any one of the three inquiries is sufficient to  


justify denying the self-representation request.32  


                       The State argues that it would be inefficient and impractical to require a  


 self-representation competency hearing before beginning an involuntary commitment  


hearing. But this argument ignores that the two inquiries have different legal standards,  


                                                                  33   If at the involuntary commitment hearing the  

requiring two separate determinations.                                                                                                         


            27         McCracken  v.  State,  518  P.2d  85,  91  (Alaska   1974).   

            28         Id.  at  91-92.  

            29         Id.  

            30         Id.  at  92.   

            31         O'Dell  v.  Municipality  of  Anchorage ,  576  P.2d  104,  107-08  (Alaska  1978).  

            32         Jensen  D.   v.   State,  Dep't   of Health   &   Soc.   Servs.,   Office   of   Children's  

Servs.,  424  P.3d  385,  389  (Alaska  2018).  

            33         See  AS  47.30.735(c) (providing  court  must  find by  clear  and  convincing  

evidence  that respondent  is  mentally  ill  and, as  a  result,  likely  to  cause  harm  to  self  or  


                                                                       -12-                                                                7427

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

respondent invokes               theright to self-representation, the superior court should                                 dedicatethe   

first   part   of   the   hearing  to   determining   the   respondent's   competency   for   self- 

representation under               McCracken 's framework.                       Although the court is not necessarily       

prohibited from reviewing the involuntary commitment petition for this purpose, the                                        

court  should   engage   in   a   thorough   colloquy   with   the   respondent   before   making   a  

                        34   The court should ensure that the respondent's waiver of counsel is  


knowing and intelligent, meaning that the respondent understands the right to counsel,  


the important advantages of having counsel, and the dangers of declining counsel.35                                                         A  


bifurcated process, taking place before substantive commitment hearing testimony, may  


help address the "conceptual difficulty that can arise when a court must consider both  


whether a respondent is competent to waive counsel and . . . whether the respondent's  


                                                                                     36  Atwo-fold process would protect  

mental condition necessitates involuntarytreatment."                                                                                 


           33         (...continued)  

others  or  is g      ravely  disabled  before  court  can  order  involuntary  30-day  commitment);  

McCracken,   518   P.2d   at   91-92   (establishing   self-representation   standard   with   lower  

burden  of  proof).  

           34         See  53 AM.   JUR.   2D  Mentally  Impaired  Persons      35 (2019)   (footnotes  



                      In  a  mental  health  proceeding  where  the  respondent w                               ishes  

                      to  represent   himself,   the   trial   court   should   engage   in  a  

                      colloquy with the respondent in order to determine whether  


                      the waiver of the right to counsel is knowing, intelligent, and  

                      voluntary and must ensure that the respondent is advised of  


                      the dangers and disadvantages of self-representation.  

           35         See  Massey  v.  State,  435  P.3d  1007,  1010  (Alaska  App.  2018)  (explaining  

court's   necessary   assurances   before   finding   defendant   knowingly   and   intelligently  

waived  counsel);  see  also  McCracken,  518  P.2d  at  91-92.   

           36         In  re  C.S.,  713 N.W.2d  542,  546  (N.D. 2006)  (discussing the  "logical  



                                                                    -13-                                                              7427

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

against erroneously presuming incompetence "simply due to the fact that mental health                                                        

proceedings are being undertaken against the respondent."                                             37  

                       The current statutory scheme for involuntary administration of medication  


provides some guidance.  Alaska Statute 47.30.836 recognizes that a respondent who is  


involuntarily committed retains the right to consent to, or decline, the administration of  


psychotropic medication.  If the treating facility has reason to believe the respondent is  


incapableofmaking an informed consent decision, it may fileapetitionfor court-ordered  


administration of psychotropic medication.38                                    The superior court must hold a separate  


hearing and conduct a separate inquiry into the respondent's capacity to give informed  


consent.39          The court also must appoint a "visitor" to assist the court and conduct a  


capacity assessment.40  If the court finds the respondent is competent to provide informed  


consent and the respondent does not consent to receiving psychotropic medication, the  


court is required by statute to order the facility "to honor the patient's decision about the  


                                                        41  The facility may overcome the respondent's decision  

use of psychotropic medication."                                                                                                         


            36         (...continued)  

tension"  between  finding  of  competence  to  waive  counsel  and  ultimate  finding  of  mental  

illness);  see  also  S.Y.  v.  Eau  Claire  Cty.,  469  N.W.2d  836,  842  (Wis.   1991).  

            37         In  re  C.S.,  713  N.W.2d  at  546.  

            38         AS  47.30.839.  

            39         Id. ;  Myers  v.  Alaska  Psychiatric  Inst.,  138  P.3d  238,  241-44  (Alaska  2006).  

            40         AS  47.30.839(d).  

            41         AS  47.30.839(f).  

                                                                        -14-                                                                  7427

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 to not receive psychotropic medication only with a court order that includes specific                                                                                              


                               McCracken  sets  out  the  required  standard  for  determining  whether  a  


respondent is capable of self-representation,  but the superior  court may  expand  its  


McCracken analysis in the involuntary commitment context by drawing guidance from  


 the foregoing procedure for involuntary administration of psychotropic medication.  As  


 the United States Supreme Court has noted:   "Mental illness itself is not a unitary  


 concept.  It varies in degree.  It can vary over time.  It interferes with an individual's  


 functioning at different times in different ways."43                                                                      And although we recognize the  


 logistical  obstacles  courts  may  face  when  a  respondent  invokes  the  right  to  self- 


representation, we have faith that the courts are equipped to  apply  the McCracken  


 analysis in involuntary commitment hearings.  


                               Cases  applying  the  McCracken   framework  in   other   contexts  also  


 demonstrate that denying a respondent's self-representation request should be based on  



 the superior court's interactions with the respondent, not solely on external sources.                                                                                                                 


                42             The court first must find the respondent presently is incompetent to provide                                                                          

 informed consent and was incompetent at the time of any previously expressed wishes                                                                                                   

not to be medicated.                                AS 47.30.839(g).                            The court then must make an independent                                  

judicial   determination   that   administration   of   psychotropic   medication   to   a   non- 

 consenting mentally ill patient in a non-emergency setting is (1)                                                                                          the least intrusive     

 treatment means available, and (2) in the patient's best interests.                                                                                Id. ;  Meyers, 138 P.3d                 

 at 250, 254.     

                43             Indiana v. Edwards, 554 U.S. 164, 175 (2008).  


                44             See,  e.g., Barry  H.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Office  of  


 Children's Servs., 404 P.3d 1231, 1235-36 (Alaska 2017) (affirming denial of self- 


representationrequestafterfatherbehavedinappropriately at earlier hearings, continually  


 challenged court's jurisdiction at termination trial, covertly radio-broadcast confidential  



                                                                                               -15-                                                                                       7427

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

Althoughmedical opinionsmay clarify therespondent's                                                                                                                                           capacity for self-representation,   

the court cannot scrupulously apply the                                                                                                   McCracken  factors without engaging directly                                                                                        

with the respondent.                                                    A court must make a realistic determination about a respondent's                                                                                                                  

mental capacity to participate in a commitment hearing without the aid of counsel, taking                                                                                                                                                                                           

 into consideration the respondent's age, education, mental condition, the complexity of                                                                                                                                                                                                          

the proceeding, and the totality of the record before the court.                                                                                                                                                      

                       C.                     Denial Of Arthur's Self-representation Request                                                                                                   

                                              Arthur   argues   that   the   superior  court   erred   by   failing   to   apply   the  

McCracken  analysis when denying him self-representation.                                                                                                                                                        Arthur argues the record                                         

 shows he "clearly and unequivocally" sought to represent himself, which the State does                                                                                                                                                                                                  

not dispute.                              Arthur contends that, once he requested to represent himself, the court was                                                                                                                                                                       

required to ask him questions and advise him before it granted or denied his request,                                                                                                                                                                                        

rather than looking only to the State's petition and its direct testimony.                                                                                                                                                                          Differentiating  

between what a court must do when                                                                                               granting  a request for self-representation versus                                                                                                

what it must do when                                                         denying  that request, the State responds that the court properly                                                                                                                             

 found   Arthur   failed   to   meet   McCracken 's   first   requirement   -   being   capable   of  

                                                                                                                                                                                                                   45  The State contends that  

presenting his allegations in a "rational and coherent manner."                                                                                                                                                                                                                             

 it was not an abuse of discretion to make this finding based on the evidence before the  




                       44                     (...continued)  


proceedings while he was participating telephonically, and argued to such extent that  


 court threatened to disconnect his telephonic participation); Jensen D. v. State, Dep't of  


Health & Soc. Servs., Office of Children's Servs., 424 P.3d 385, 389-90 (Alaska 2018)  


 (affirming self-representation request denial when mother interrupted court, interrupted  


 other witnesses' testimony, and appeared under influence of drugs or alcohol).  

                       45                     See McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).  


                                                                                                                                              -16-                                                                                                                                      7427

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                                                    The superior court's findings regarding Arthur's capability to represent                                                                                                                                                                                 

himself are nearly non-existent.                                                                                                In the hearing's first few minutes, Arthur's attorney                                                                                                                            

informed the court of the self-representation request.                                                                                                                                                                   The court denied the request                                                               

immediately, stating: "[B]ased                                                                                          on the petition, theCourt                                                                       would find that theresponde[nt]   

is not fit to represent himself." The court then asked Arthur's attorney if further inquiry                                                                                                                                                                                                                          

was required, and the attorney responded in the negative before Arthur interrupted and                                                                                                                                                                                                                                              

asked for a psychiatric evaluation to determine his fitness.                                                                                                                                                                         46  The court stated it would  

"at least hear the [S]tate's direct . . . testimony" before it would "explore further whether  


or not that is a reasonable possibility." After the psychiatrist's direct testimony, the court  


 summarily stated:  "And with the benefit of that direct testimony, the [c]ourt will deny,  


finally, [Arthur's] application to represent himself . . . ."  


                                                    Although the superior court apparently considered the request throughout  


the psychiatrist's direct testimony, relying solely on the petition certainly would have  


required automatic reversal.   Every involuntary commitment petition alleges mental  


illness; if a court determines self-representation competence based solely on a petition,  


the   self-representation   right   is   nullified   and   subsumed   within   the  involuntary  


commitment determination. And despite the court's reliance on the psychiatrist's direct  


testimony in this case, the court did not wait for  cross-examination, engage in any  


                          46                        The State contends:                                                                "To the extent Arthur now objects to the court's                                                                                                                              

relying on the commitment petition in making its preliminary determination that he was                                                                                                                                                                                                                                             

unfit to represent himself, the plain error standard applies because neither [his] attorney                                                                                                                                                                                                                       

nor [he] objected at that time."                                                                                          This statement is incorrect; although Arthur's attorney                                                                                                                                

indicated   that   no  "further   inquiry"   was   required   at   that   point,   Arthur   immediately  

interrupted the court to ask for                                                                                                   a psychiatric evaluation for the specific purpose of                                                                                                                                                 

determining his fitness for self-representation, indicating that the petition alone was                                                                                                                                                                                                                                          

insufficient.   Because of the nature of Arthur's appeal - arguing that he should have                                                                                                                                                                                                                                         

been allowed to represent himself - it would be unfair to view his attorney's statement                                                                                                                                                                                                                     

as waiving his representational right, particularly given that Arthur himself objected.                                                                                                                                                                                                                 

                                                                                                                                                                 -17-                                                                                                                                                          7427

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

colloquy, or apply any                       McCracken  factors before denying Arthur's request to represent                                            

himself.    Nothing   indicates   that   Arthur   was   unruly   or   that   he   misunderstood   the  

proceedings during the psychiatrist's direct testimony.                                                    And the court's findings did not                         

explain why it denied Arthur's request.                       

                          The State argues that the superior court implicitly found Arthur did not                                                                 

meet   McCracken 's first factor                               - being             "capable of presenting                         his allegations in                   a  

                                                           47  - such that the court was not required to do anything  

rational and coherent manner"                                                                                                                            

more.  The State supports its argument by drawing on the psychiatrist's testimony that  


Arthur was actively manic and experiencing delusions.  Although Arthur's mental state  


certainly was relevant, this is insufficient evidence for concluding he was incapable of  


"presenting his allegations in a rational and coherent manner."48  One can be mentally  


ill and still argue capably. Without factual findings about precisely why Arthur was unfit  


to represent himself, a finding that he was mentally ill is insufficient to support denying  


his request to represent himself.  


                          The State supports its argument by stating that Arthur's "testimony further  


validated the court's decision." But Arthur's testimony was irrelevant; the court already  


had made its final decision by that point.  Even if Arthur's later testimony may have  


evidenced an inability to present his thoughts rationally and coherently, it was error to  


not make findings or engage in a discussion with him, as McCracken requires, before  


making that determination.  


                          The State argues that any error in denying Arthur's self-representation  


request was harmless and that even if the court followed proper procedures, the result  


would have been the same.  But as the United States Supreme Court has held in the  


             47           McCracken,  518  P.2d  at  91.  

             48           See  id.   

                                                                                 -18-                                                                                 7427  

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

criminal context:                               "[T]he right of self-representation is a right that when exercised                                                                                

usually increases the likelihood of a trial outcome unfavorable to the defendant, [and] its                                                                                                                          

denial is not amenable to 'harmless error' analysis.                                                                                    The right is either respected or                                             

                                                                                                                49     Failure to conduct a self-representation  

denied; its deprivation cannot be harmless."                                                                                                                           

inquiry in this case was more than a mere technical violation.  Because a respondent's  


invocation  of  the  right  to  self-representation  affects  the  involuntary  commitment  


hearing's framework, failure to conduct a self-representation inquiry after a respondent  


clearly and unequivocallyinvokes theright is effectively astructural defect not amenable  


to harmless error analysis.50                                             The 30-day commitment order must be vacated.  


IV.              CONCLUSION  

                                  Refusal   to   hold   a   separate  McCracken   inquiry   on   Arthur's   self- 


representation request was legal error requiring that the 30-day involuntary commitment  


order be VACATED.  


                 49               McKaskle v. Wiggins                                  , 465 U.S. 168, 177 n.8 (1984).                              

                 50               See Massey v. State                                 , 435 P.3d 1007, 1011 (Alaska App. 2018) (citing                                                                   


McKaskle, 465 U.S. at 177 n.8, and holding that "the superior court's refusal to hold a  

hearing on[thecriminal defendant's]request                                                                      for self-representationwasastructural                                                         error  


that requires reversal of his conviction"); see also United States v. Gonzalez-Lopez, 548  


U.S.  140, 148-49 (2006) (noting that "structural defects" "defy analysis by 'harmless- 

error' standards" because they "affec[t] the framework within which the trial proceeds"                                                                                                          


rather than constituting "simply an error in the trial process itself" (quoting Arizona v.  


Fulminante, 499 U.S. 279, 309-10 (1991))).  

                                                                                                        -19-                                                                                                  7427

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