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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.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

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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,  

                     Judge.  



                                                                                                   

                     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.  



I.        INTRODUCTION  



                                                                                                                                 

                     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.  

                                                          



II.           FACTS AND PROCEEDINGS  

                                             



              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                                                                          



           4  

                                                                                                                                                            

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  



                     5  

evaluation.   



                                                                                                                                                        

                         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  

                                                                                                                                         

obtained.  



                                                                              -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                                                                                                                        



                                                                                                                                                                            6  

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  



                     

possibility."  



                                                                                                                               

                    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- 

                  REPRESENTATION   REQUEST   WITHOUT   FIRST   CONDUCTING   A  

                   SEPARATE INQUIRY.   



                                    Arthurarguesthatinvoluntarycommitmentrespondentshaveconstitutional                                                                                               

 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  



                                                 11  

                                                       

 represent himself. 



                                                                                                                     

                  A.	               Implicit Statutory Right To Self-representation  



                                                                                                                                                                                     

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



                                                                                                                         12  

                                                                                                                                                                                                             

 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-----------------------

                                                                                  13  

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  

                                                                                                                                                                                               

disregarded."16  



                              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-----------------------

                                                                                                     18  

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   



                                                                                                                                                                            23  

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-----------------------

                27  

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



                                                                                                                                                 28  

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  

                                                                                                                             (continued...)  



                                                                       -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  

determination.                                                                                                                              



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  

                                   

omitted):  



                      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  

                                                                                                                                  

                                                                                                                         (continued...)  



                                                                    -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
  


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

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

 findings.42  



                               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  

                                                                                                                                                                                                 



                                                                                                                                                                                                  44  

 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  

                                                                                                                                                                           

                                                                                                                                                                       (continued...)  



                                                                                               -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  

                                                                                                                                                                                                                                                                                              



 court.  

                      



                       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
  


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

                                                    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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