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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Hospitalization of Naomi B. (1/11/2019) sp-7328

In Re Hospitalization of Naomi B. (1/11/2019) sp-7328

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                        

In  the  Matter  of  the  Necessity                                   )  

for  the  Hospitalization  of                                         )     Supreme  Court  Nos.  S-15859/16467  

                                                                      )     (Consolidated)  


NAOMI B.                                                              )  


                                                                      )     Superior Court No. 3AN-15-00204 PR  



                                                                      )     O P I N I O N  



In the Matter of the Necessity                                                                                      

                                                                      )     No. 7328 - January 11, 2019  


for the Hospitalization of                                            )  



LINDA M.                                                                                                                                

                                                                      )     Superior Court No. 3AN-16-01656 PR  





                         ppeal in File No. S-15859 from the Superior Court of the  


                      State  of  Alaska,  Third  Judicial  District,  Anchorage,  John  


                      Suddock,  Judge.                Appeal  in  File  No.  S-16467  from  the  


                      Superior Court of the State of Alaska, Third Judicial District,  


                      Anchorage, Mark Rindner, Judge.  


                      Appearances:  Rachel Cella, Assistant Public Defender, and  


                      Quinlan Steiner, Public Defender, Anchorage, for Appellant  


                      Naomi B.  James B. Gottstein, Law Project for Psychiatric  


                      Rights, Inc., Anchorage, for Appellant Linda M.  Joanne M.  


                      Grace        and      Laura        Fox,       Assistant         Attorneys           General,  


                      Anchorage,and JahnaLindemuth,Attorney General,Juneau,  


                      for Appellee State of Alaska.  


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


                      and Carney, Justices.  

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

                                        STOWERS, Chief Justice, and CARNEY, Justice.                                                                                

                                       BOLGER, Justice, concurring.                            

 I.                 INTRODUCTION  

                                       We are presented with two separate appeals from involuntary commitment                                                                                                           

 orders, brought by two appellants, one of whom also appeals a related involuntary                                                                                                                                       

 medication order.                                      The challenged orders expired while the respective appeals were                                                                                                                      

 pending; we consolidated the cases for briefing on whether to revisit our mootness                                                                                                                                            

jurisprudence in involuntary commitment and involuntary medication appeals. We now                                                                                                                                                              

 hold that all appeals of involuntary admissions for treatment and involuntary medication                                                                                                                                   

 are categorically exempt from the mootness doctrine.                                                                                                        After reviewing each case on its                                                        

 merits and finding no error in the orders appealed, we affirm.                                                                                                

 II.                FACTS AND PROCEEDINGS                      

                    A.                 Naomi B.                      1  

                                       In January 2015 Adult Protective Services petitioned for an ex parte order  


 committing Naomi B. to the Alaska Psychiatric Institute (API).   She agreed to stay  


 voluntarily  and  to  take  medication,  attend  groups  and  meetings,  and  plan  for  her  


 discharge.   But after her admission she refused to take medication or participate in  



                                       Naomi'sstatesoon worsened. Shereported being repeatedly raped, hit, and  


 assaulted, but API found no evidence to support her allegations after conducting a  


 physical examand reviewing tapes fromthe facility's surveillance cameras. Her treating  


 psychiatrist, Dr. David Mack, concluded that Naomi's reports were delusions caused by  


 mental illness, and he diagnosed her with schizoaffective disorder, bipolar subtype.  




                                       Pseudonyms have been used throughout this opinion to protect the privacy  


 of the parties.  

                                                                                                                          -2-                                                                                                                            7328  

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

                                            Naomi never demanded to be discharged from API, and while she ate and                                                                                                                                                               

maintained her personal hygiene, she could not or would not cooperate with API staff  

to plan for her discharge. Concerned that she could not manage her treatment or housing                                                                                                                                                                           

outside of API, hospital staff filed a petition later that month to involuntarily commit                                                                                                                                                                           

Naomi for 30 days.                                                The petition alleged that Naomi was "gravely disabled and there                                                                                                                                          

 [was] reason to believe that [her] mental condition could be improved by the course of                                                                                                                                                                                              

treatment sought."                                             API also petitioned the court to approve involuntary administration                                                                                                           

of psychotropic drugs.                                

                                            That same day a magistrate judge held hearings on both petitions.                                                                                                                                                       Naomi  

was represented by an attorney at the hearings, but declined to participate in person. The                                                                                                                                                                                     

                                        2  testified that Naomi had refused to meet with her, that she was therefore  

court visitor                                                                                                                                                                                                                                                 

unable  to  offer  an  opinion  about  Naomi's  capacity  to  give  informed  consent  to  


medication, and that she had been unable to find any advance health care directive in  


Naomi's medical records.3  


                                            The court next addressed the involuntary commitment petition.  Dr. Mack  


testified that outpatient treatment would not be adequate for Naomi because she was "at  


great risk for exposure to disorganized, aggressive behaviors if she's not surround[ed]  


by a professional staff." Dr. Mack also indicated that Naomi was "unable to engage with  


 [API's] treatment team on basic needs due to her delusional construct" and that API had  


not been able to confirm that Naomi had a safe place to live.  As a result he believed  


                      2                     When an involuntary medication petition is filed, the superior court is                                                                                                                                                                   

required to appoint an independent court visitor to assist in investigating whether a                                                                                                                                                                                                  

patient   has   capacity  to   give   or   withhold   informed   consent   to   the   administration   of  

psychotropic medication.                                                             AS 47.30.839(d).   

                      3                     An advance health care directive could have indicated Naomi's position  


regarding psychotropic medication.  See AS 47.30.839(d)(2).  


                                                                                                                                          -3-                                                                                                                               7328

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


there was no less restrictive placement where Naomi could receive treatment. The court  


granted the petition, finding that Naomi was "mentally ill and, as a result, gravely  


disabled," and that there was no less restrictive treatment alternative.  


                    The court then turned to the petition for court approval of administration  


of  psychotropic medication.   Dr. Mack testified that API sought to administer two  


medications  to  Naomi:                olanzapine,  an  antipsychotic  to  address  her  delusions,  and  


lorazepam to reduce anxiety and irritability and to treat some side effects of olanzapine.  


Dr. Mack acknowledged risks associated with both medications but concluded that the  


benefits outweighed the risks.  He hoped that the medications could improve Naomi's  


condition within a week.  He believed that Naomi had no ability to give or withhold  


informed consent to the administration of the medications, that the medications were in  


her  best  interests,  and  that  there  was  no  less  intrusive  means  of  treating  Naomi's  


schizoaffective disorder.  He also said that Naomi would be offered various forms of  


group treatment to help her manage her illness, but that the group therapies alone would  


not successfully treat Naomi's disorder.  The court granted the petition for medication  


"with the amendment that the lorazepam [was to be administered] only as needed."  


                    Naomi's lawyer did not question witnesses, raise objections, or make any  


arguments to the court.  


                    The magistrate judge issued a written report detailing the factual and legal  


findings   from  the   hearing;   the   superior   court   adopted   the   magistrate   judge's  


recommended findings and signed the attached orders in February.  


                    Naomi appeals, arguing that the superior court erred in finding that she was  


gravely disabled, that there was no less intrusive alternative to involuntary medication,  


and that forced medication was in her best interests.  Naomi requests that we reverse or  


vacate the commitment and medication orders.  

                                                                -4-                                                         7328

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


          B.        Linda M.  


                    Linda M. has a history of mental health issues spanning most of her adult  


life.  By 2016 she had exhibited paranoia and aggressive behavior, such as spitting at  


people, and kicking and throwing things.  The Anchorage Police Department's crisis  


intervention team responded several times to calls from Linda's mother reporting that  


Linda was threatening her. The police described Linda as "agitated" and "very volatile,"  


and they eventually arrested Linda for threatening her mother with a shovel and spitting  


on her.  At the time Linda was already facing a criminal charge for reckless driving in  


connection with a car accident.  


                    While in custody for the two criminal cases, Linda was sent to API for an  


evaluation and restoration of her competency to stand trial.  In July 2016 API filed a  


petition  to  commit  Linda  for  30  days.                      During  the  commitment  hearing,  Linda's  


testimony seemed paranoid and delusional, including statements that members of a drug  


cartel had attempted to poison her; a psychiatric nurse practitioner testified that Linda  


had schizophrenia. The court found that Linda had a mental illness and as a result posed  


a "substantial risk of harm to others."  It granted API's petition to commit Linda for up  


to 30 days.  During her commitment, Linda voluntarily participated in therapy, but she  


also swore, lunged, and swung at various API staff members, raising concerns about her  


unpredictability and aggressive behavior. The therapy did not lead to improvement, and  


the efficacy of the drugs administered by API remained unclear.  


                    In August 2016 API filed a petition to commit Linda for another 90 days  


and  Linda  requested  a  jury  trial.                 During  the  trial  Linda  offered  further  testimony  


reflecting paranoid delusions.  The jury unanimously found by clear and convincing  


evidence that Linda was mentally ill and that as a result she was "likely to cause harm  


to others."  

                                                               -5-                                                         7328

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


                    Approximately one week after the jury verdict, the superior court held an  


evidentiaryhearingon whether therewasanylessrestrictivealternativeto hospitalization  


at API. Various experts testified and several alternatives were explored. An API mental  


health clinician who was certified as an expert in API discharge planning testified that,  


because Linda was not taking medication as prescribed, she would not be accepted into  


a publicly funded assisted living home.  The clinician also testified that a halfway house  


for  formerly  incarcerated  individuals  would  not  be  appropriate  for  Linda,  even  in  


conjunction with a community support program, and that privately operated assisted  


living  facilities  would  likely  reject  Linda  because  of  her  unpredictability  and  


aggressiveness.   An API psychiatric nurse practitioner similarly testified that Linda  


needed to be stabilized using medication at API before her release, that she still needed  


"24/7 . . .  supervision," and that releasing Linda into the community at that time would  


set her up for failure.  


                     Finally, a clinical psychiatrist testified that Linda could be discharged to an  


outpatient community support program if safe housing could also be arranged for her,  


such as an assisted living facility or other location with professional staff that could  


"retain her" if she became agitated.  He also discussed a closed facility, Soteria-Alaska,  


as a less restrictive alternative to API.  He testified that Soteria-Alaska had operated for  


seven years in Anchorage and had offered an alternative to the psychiatric inpatient  


hospitalization offered at API, but one that still provided "24/7" supervision.  But he  


testified that Soteria-Alaska was shut down due to funding issues.  He opined Soteria- 


Alaska would have been a good option for Linda if it were still in operation.  


                     Linda's counsel asserted during closing argument that the evidence had not  


established a high probability that a less restrictive alternative would be unsuccessful.  


Counsel also argued that Linda "ha[d] the constitutional right to a Soteria-like setting."  

                                                                -6-                                                          7328

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

 More specifically, counsel argued that "the state cannot de-fund Soteria-Alaska and then                                                                                                                                                                                                                                                                                                                                                                                                                                 

 say that because we haven't funded it, there is no less-restrictive alternative."                                                                                                                                                                                                                                                                                                                             

                                                                                   The superior court determined that, given the jury finding that Linda was                                                                                                                                                                                                                                                                                                                                                               

 likely to cause harm to others, "a less restrictive alternative would have to . . . protect                                                                                                                                                                                                                                                                                                                                                                                         

 others from physical injury."                                                                                                                                                               The court reasoned that "none of the less restrictive                                                                                                                                                                                                                                 

 alternatives that have been proposed by [Linda] or would otherwise be available will                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

protect . . . the public from the danger to others that [Linda] currently [poses]."                                                                                                                                                                                                                                                                                                                                                                                                                                  The  

 court explained that when Linda becomes agitated, it happens quickly, and that no less                                                                                                                                                                                                                                                                                                                                                                                                                                     

 restrictive alternative was sufficient to protect the public "other than a facility like API                                                                                                                                                                                                                                                                                                                                                                                                                             

 that is locked and [that] provides 24/7 care."  Finally, with regard to Soteria-Alaska as                                                                                                                                                                                                                                                                                                                                                                                                                                            

 a proposed alternative, the court stated, "I reject the idea that there's a constitutional right                                                                                                                                                                                                                                                                                                                                                                                                                      

 that would require the state to fund particular kinds of programs.                                                                                                                                                                                                                                                                                                                                                                    There would be                                                                             

 separation of powers issues, I believe."                                                                                                                                        

                                                                                   The superior court found that there was no less restrictive alternative to                                                                                                                                                                                                                                                                                                                                                                         

 commitment at API.                                                                                                              Linda appeals, arguing that the court erred by rejecting Soteria-                                                                                                                                                                                                                                                                                               

 Alaska as a feasible less restrictive alternative, and that her commitment order therefore                                                                                                                                                                                                                                                                                                                                                                                                 

 violated her constitutional right not to be hospitalized where a feasible less restrictive                                                                                                                                                                                                                                                                                                                                                                                          

 alternative exists. She requests that we reverse and vacate the 90-day commitment order.                                                                                                                                                                                                                                                                                                                                                                                                                       

 III.                                     STANDARD OF REVIEW                                                                                               

                                                                                   "We apply our independent judgment to issues of mootness because as a                                                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                                                                                                 4  We review the superior court's  

 matter of judicial policy, mootness is a question of law."                                                                                                                                                                                                                                                                                                                                                                                                                                              

 factual findings in involuntary commitmentormedication proceedings for clear error and  


 reverse those findings only if we have a "definite and firm conviction that a mistake has  


                                          4                                       In re Tracy C.                                                                        , 249 P.3d 1085, 1089 (Alaska 2011) (quoting                                                                                                                                                                                                                                         Clark v. State,                                     

Dep't of Corr.                                                                          , 156 P.3d 384, 386 (Alaska 2007));                                                                                                                                                                                      see also In re Jacob S.                                                                                                                  , 384 P.3d 758,                                               

 764 (Alaska 2016).                                                           

                                                                                                                                                                                                                                                                   -7-                                                                                                                                                                                                                                                 7328

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


been made."               However, whether those findings meet the statutory requirements for                                              

involuntary commitment or medication is a question of law to which we apply our                                                           



independent judgment.   The independent-judgment standard also applies to questions  


regarding the interpretation of constitutional and statutory provisions, adopting "the rule  



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



           A.	        We  Will  Consider  The  Merits  Of  Naomi's  And  Linda's  Appeals  


                      Because We Hold That The Public Interest Exception Applies To All  


                      Appeals From Involuntary Admission For Treatment.  


                      As  typically  happens  in  involuntary  admission  for  treatment  appeals,  


Naomi's and Linda's commitment orders and Naomi's medication order expired while  


their appeals were pending. Under our prior ruling in Wetherhorn v. Alaska Psychiatric  



Institute, this would render their appeals moot.   In its initial briefing in Naomi's case,  


the State argued that Naomi's case should be dismissed as moot.  Naomi argued that her  



case fell under both the public interest exception to the mootness doctrine                                                        and the  

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

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

           6          Id. at 764 (citing Wetherhorn, 156 P.3d at 375).  


           7          Id.  (quoting   Wetherhorn,   156  P.3d  at  375).  

           8           156  P.3d  at  380-81   (holding  appeal  of  commitment  order  moot  as  30-day  

commitment  period  had  ended).  

           9          See In re Heather R., 366 P.3d 530, 532 (Alaska 2016) (applying public  


interest exception to reach merits of due process challenge to expired evaluation order);  


see also In re Daniel G., 320 P.3d 262, 267-68 (Alaska 2014) (applying public interest  


exception to due process challenge to ex parte 72-hour involuntary evaluation order).  


An otherwise moot claim may be considered under the public interest exception if:  (1)  


"the disputed issues are capable of repetition"; (2) applying the mootness doctrine "may  



                                                                      -8-	                                                             7328

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


collateral consequences exception.                                   She also argued, alternatively, that merit-based                  

review of commitment appeals was mandated by federal due process concerns and that                                                                    

                                                                                                        11   We rejected this statutory  

she had a statutory right to appeal under AS 47.30.765.                                                                                      

                                                                     12 but Naomi argued that we should overrule that  

argument in In re Mark V. (Mark V. I),                                                                                                                 



                        In Linda's case the State suggested that we could consider the merits of  


Linda's case under the public interest exception.  Linda agreed that we should do so, or,  


alternatively,  that  we  should  revisit  our  mootness  jurisprudence  in  the  involuntary  


commitment context andhear all appeals ofpsychiatricconfinementorderson themerits.  


We consolidated the two cases on appeal and asked all parties for supplemental briefing  


on whether - and if so, how - we should revisit our case law on moot involuntary  


commitment and medication appeals.  


            9           (...continued)  


cause review of the issues to be repeatedly circumvented"; and (3) the issues "are so  


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


R., 366 P.3d at 532 (quoting Wetherhorn, 156 P.3d at 380-81).  

            10          See In re Joan K., 273 P.3d 594, 597-98 (Alaska 2012) ("[T]he collateral  


consequences doctrine 'allows courts to decide otherwise-moot cases when a judgment  


may carry indirect consequences in addition to its direct force, either as a matter of legal  


rules or as a matter of practical effect.' "(quoting Peter A. v. State, Dep't of Health &  


Soc. Servs., Office of Children's Servs., 146 P.3d 991, 994-95 (Alaska 2006))).  Our  


application of the collateral consequences exception in Joan K. was limited to appeals  


from a person's first involuntary commitment order.  Id. at 598.  


            11          AS 47.30.765 provides:  "The respondent has the right to an appeal from  


an order of involuntary commitment.   The court shall inform the respondent of this  



            12          324 P.3d 840, 847-48 (Alaska 2014).  


                                                                            -9-                                                                    7328

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

                                        We do not lightly overturn our previous decisions.                                                                                                       After reexamining our                                      

decisions regarding the mootness doctrine as applied to cases involving involuntary                                                                                                                                               

admission for treatment and medication, and in light of the broad agreement in the                                                                                                                                                                         

supplemental briefing regarding the practical consequences that have followed from                                                                                                                                                                    

those decisions - discussed in more detail below - we are persuaded that our previous                                                                                                                                                       

rulings with regard to mootness in these contexts were mistaken and that more good than                                                                                                                                                                  

harm will come from overturning them.                                                                                     

                                         1.	                 Mootness   in   commitment   appeals   -    Wetherhorn    and    its  


                                        A history of our mootness jurisprudence is useful for context. Although the                                                                                                                                          

legislature amended Alaska's mental health statutes in 1981 in response to a nationwide                                                                                                                                           

                                                                                               13 we heard few appeals from such cases until more than  

shift in mental health treatment,                                                                                                                                                                                                                        

20 years later.  In 2007, in Wetherhorn v. Alaska Psychiatric Institute, we considered a  


constitutional challenge to the statutory definition of "grave disability" and a due process  


challenge to the proceedings in which the appellant was involuntarily committed to API  


for 30 days.14   The appellant also challenged the sufficiency of the evidence underlying  


her commitment, but we declined to consider that challenge because the commitment  


period had "long since passed," rendering the question moot.15                                                                                                                                             We considered but  


declined  to  apply  the  public  interest  exception,  reasoning  that  "Wetherhorn  was  


committed based on a specific set of facts," that "[i]f it were to become necessary to seek  


Wetherhorn's commitment again, the hearing would be based on a different set of facts  


specific  to  different  circumstances,"  and  that  "factual  questions  are  not  capable  of  


                    13                   Ch. 84,  1, SLA 1981.                               

                    14                   156 P.3d at 375-80.                 



                                        Id. at 380-81.  

                                                                                                                             -10-	                                                                                                                     7328

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


 repetition."                     Wetherhorn  thus established that appeals from commitment orders are                                                                                                    

 moot when the appellant has already been released before the appeal is heard and that the                                                                                                                 

public interest exception would apply only to generally applicable questions of law and                                                                                                                  

 not to questions of fact like sufficiency-of-the-evidence challenges.                                                                   

                                 Our 2012 opinion in                                 In re Joan K.                        departed from the strict holding of                                               

 Wetherhorn  and adopted a "collateral consequences exception" to the mootness doctrine                                                                                                       

                                                                                       17  The appellant in that case noted that several other  

 in involuntary commitment appeals.                                                                                                                                                                   

jurisdictions   had   applied   the   collateral   consequences   exception   to   involuntary  


 commitment appeals on the basis of, for example, "social stigma, adverse employment  


 restrictions, application  in  future legal proceedings,  and  restrictions on the right to  


possess  firearms."18                                    We  concluded  "that  there  are  sufficient  general  collateral  


 consequences, without the need for a particularized showing, to apply the doctrine in an  


 otherwise-moot appeal from a person's first involuntary commitment order."19  Because  


Joan K. involved the appellant's first involuntary commitment, we reviewed the merits  


                                                                            20       But  we  also  "note[d]  that  some  number  of  prior  

 of  her  evidentiary  challenges.                                                                                                                                                                   


 involuntary  commitment orders would  likely eliminate the possibility of additional  


                 16             Id.  at  381.  

                 17              273  P.3d  594,  596-98  (Alaska  2012).  

                 18             Id.  at  597  (footnotes  omitted)  (first  citing  In  re  Alfred  H.H.,  910  N.E.2d  74,  

 84  (Ill.  2009);  State  v.  Lodge,  608  S.W.2d  910,  912  (Tex.  1980);  State  v.  J.S.,  817  A.2d  

 53,  55-56  (Vt.  2002);  then  citing  Alfred  H.H.,  910  N.E.2d  at  84;  then  citing  Alfred  H.H.,  

 910  N.E.2d  at  84;  In  re  Hatley,  231  S.E.2d  633,  634-35  (N.C.   1977);  and  then  citing  In  

 re   Walter  R.,  850  A.2d  346,  349  (Me.  2004)).  

                 19             Id. at 598.  


                 20             Id. at 598-602.  


                                                                                                    -11-                                                                                              7328

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


 collateral consequences, precluding the doctrine's application."                                                                To illustrate the point,         

we cited          Bigley v. Alaska Psychiatric Institute                                      , which described a " 'revolving door'                              

pattern of arrest, hospitalization, release and relapse" in which the appellant had been                                                                           

                                                                  22    We did not, however, explicitly limit the collateral  

 admitted to API at least 68 times.                                                                                                                       

 consequences exception to an appellant's first involuntary commitment or specify what  


number of prior commitments would render further collateral consequences negligible.  


                           Joan K. also cursorily presented thequestion whether AS 47.30.765, which  


provides that the respondent to an involuntary commitment petition "has the right to an  


 appeal from an order of involuntary commitment," supersedes the mootness doctrine in  


this context.23               Because we adopted and applied the collateral consequences exception,  


we did not reach this question, but we expressed some skepticism.24                                                                     We addressed this  


                                                                      25    There we noted that other statutes also provide  

 issue two years later in Mark V. I .                                                                                                                        


 "rights  of  appeal  equivalent  to  those  provided  by  AS  47.30.765"26                                                                   and  that  "[t]he  


 existence of these statutes ha[d] not in practice compelled us to review otherwise-moot  


              21           Id.  at 598.   

              22           Id.  at 598 n.18 (citing                  Bigley v. Alaska Psychiatric Inst.                              , 208 P.3d 168, 172-           

 73 (Alaska 2009)).  


              23           Id. at 597.  


              24           Id. ("Although Joan's interpretation of the statute as overriding the judicial  


policy of not deciding moot cases appears overbroad, we do not need to address this  


 argument . . . .").  


              25           324 P.3d 840, 847-48 (Alaska 2014).  


              26           Id. at 847 (first citing AS 47.10.080(i) (right to appeal judgments in child- 


 in-need-of-aid proceedings); then citing AS 22.05.010(c) (right to appeal administrative  


 agency decisions to the superior court); AS 22.07.020(d) (providing that "[a]n appeal to  


the  court  of  appeals  is  a  matter  of  right  in  all  actions  and  proceedings  within  its  



                                                                                  -12-                                                                            7328

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


appeals."          We concluded the statute did not "requir[e] appellate review of a moot civil                                     

commitment dispute."                28  

                      Our opinion in In re Dakota K. addressed the question - left unresolved  


by Joan K. - of which party bears the burden to show the existence or non-existence  


of collateral consequences.29  We concluded that the party opposing mootness bears "the  


burden to establish the fact of collateral consequences."30                                  Because the appellant in that  


case  had  not  made  a  showing  or  even  alleged  that  the  challenged  involuntary  


commitment was his firstor that any other collateral consequences applied, we dismissed  


the appeal as moot.31  


                      That same year we addressed a procedural issue concerning mootness in  


In re Reid K.32   We recognized that because the mootness issue was first addressed in the  


State's appellee's brief, the appellant had not had a chance to demonstrate that his claims  


were not moot or that they fell within a mootness exception doctrine until the reply  


         33  To remedy this procedural hurdle, we suggested that it would be "best practice  


           27        Id.  at  847-48.  

           28        Id.  at  848.  

           29         354  P.3d   1068,   1071-72  (Alaska  2015).  

           30        Id.  at   1072-73.  

           31        Id.  at   1073.  

           32         357  P.3d  776,  782-83  (Alaska  2015).  

           33        Id.  at  782.   This  is  problematic  because,  under  Alaska  Appellate  Rule  212,  

a  reply  brief  is  limited  to  20  pages  and  must  be  filed  within  20  days  after  service  of  the  

appellee's  brief.   Where  mootness  is  raised  for  the  first  time  in  the  appellee's  brief,  this  

could make it difficult for the  appellant to address the issue in full  within the time and  

space  restrictions  of  a  reply  brief  without  forgoing  substantive  arguments.  

                                                                  -13-                                                             7328

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

for the State to move to dismiss appeals of commitment orders as moot before briefing                                                     


commences when no mootness exception is readily apparent."                                                                                        

                                                                                                                 We explained that this  


procedure  might  "save  scarce  public  attorney  and  judicial  resources  by  avoiding  



merits-based briefing" in cases that would ultimately be dismissed as moot. 

                       2.	         Our   mootness   jurisprudence   has   proved   unworkable   in  



                       In their supplemental briefing the parties agree that over the past decade,  

our  mootness  jurisprudence  as  applied  to  involuntary  commitment  and  medication  


appeals has resulted in significant time and effort spent addressing mootness issues.  


Counsel for both the State and Naomi indicate that in commitment appeals, briefing and  


litigating mootness is often more time- and resource-consuming than addressing the  


actual merits of any particular case. The State argues that "[t]he collateral consequences  


exception can be particularly difficult to litigate because its applicability can hinge on  


facts that may not be in the appellate record."  


                       The procedure we laid out in Reid K. for a pre-briefing motion to dismiss  


on mootness grounds was not used in either of these cases.  Naomi's attorney, a public  


defender, indicates that "in appeals involving the Public Defender Agency, it does not  


appear that the Reid K. [procedure] has been utilized at all."  The State concedes that it  


has not effectively implemented the Reid K. procedure, noting that it can be difficult to  


determine if the issues raised on appeal would fall within a mootness exception before  


the appellant's arguments are articulated in the opening brief. Naomi further argues that  


even if the Reid K. procedure had been used, addressing the potential applicability of a  


mootness exception "entails reviewing the record, researching the relevant issues, and  


            34         Id.  

            35         Id.  at  783.  

                                                                        -14-                                                                        7328  

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

 filing a detailed response to the dismissal motion that is not unlike a merits-based brief."                                                                                                                                                                    

Thus, she argues, if a mootness exception even arguably applies, using the                                                                                                                                                           Reid K.   

procedure   merely   "shifts   resources   to   an   earlier  stage   in  the   case   but   does   not  

meaningfully save them."                                

                                       A review of our past and pending cases also indicates that mootness has                                                                                                                                      

dominated appeals in theinvoluntary                                                                        commitment context: as                                                 of February 2018 -when                                      

we heard oral arguments on this issue - all but three of our prior decisions in post-                                                                                                                                                          

 Wetherhorn   commitment   appeals   directly   addressed,   to   some   extent,   whether   the  

                                                                                         36      Similarly, of the commitment cases pending before us  

commitment appeal was moot.                                                                                                                                                                                                                             

that had been fully briefed at that time, almost all included briefing on mootness.  


                                       We have consistently held that we will not reconsider prior rulings without  


compelling reasons for doing so:  "We will overrule a prior decision only when clearly  


convinced  that the rule was originally  erroneous or  is no  longer  sound  because of  


changed conditions, and that more good than harm would result from a departure from  


                    36                 See In re Mark V.                                     (Mark V. II                        ), 375 P.3d 51, 55-56 (Alaska 2016);                                                                          In re   

Heather R.                       , 366 P.3d 530, 532 (Alaska 2016);                                                                      In re Reid K., 357 P.3d at 780-83;                                                                    In re   

Dakota K.                      , 354 P.3d at 1070-73;                                           Mark V. I                  , 324 P.3d 840, 843-48 (Alaska 2014);                                                                               In re   

Daniel G.                    , 320 P.3d 262, 267-69 (Alaska 2014);                                                                          In re Stephen O.                                , 314 P.3d 1185, 1191-                           

 92 (Alaska 2013);  In re Jeffrey E.                                                                , 281 P.3d 84, 86 (Alaska 2012);                                                                  In re Joan K.                            , 273   

P.3d 594, 596-98 (Alaska 2012);                                                                 In re Tracy C.                          , 249 P.3d 1085, 1089-91 (Alaska 2011);                                                            

Bigley v. Alaska Psychiatric Inst.                                                                   , 208 P.3d 168, 179 (Alaska 2009);                                                                          E.P. v. Alaska          

Psychiatric Inst.                               , 205 P.3d1101,1106-08 (Alaska2009);                                                                                WayneB. v. Alaska Psychiatric                            

Inst., 192 P.3d 989, 990-91 (Alaska 2008);                                                                                        Maness v. Daily                                  , 184 P.3d 1, 7-8 (Alaska                           



                                       The outliers are Wetherhorn v. Alaska Psychiatric Institute, 167 P.3d 701  


 (Alaska 2007), which addressed only an attorney's fee dispute arising out of the first  


 Wetherhorn  case,  and  two  cases  where  we  addressed  the  challenged  involuntary  


commitment  without  discussing  mootness,  but  still  considered  whether  a  related  


involuntary medication appeal was moot. In re Jacob S., 384 P.3d 758, 769-70 (Alaska  


2016); In re Gabriel C., 324 P.3d 835, 837-40 (Alaska 2014).  

                                                                                                                         -15-                                                                                                                  7328

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


precedent."             We have recognized that our precedent may be overturned as "originally                                


erroneous" if it has "prove[d] to be unworkable in practice."                                           

                      As we explained in Dakota K., "[m]ootness is a judicially created doctrine  


                                                                                       39   Our mootness jurisprudence has  

meant to promote expediency and judicial economy."                                                                                        


failed to achieve these goals: more, rather than fewer, resources of public attorneys and  


the  court  have  been  spent  litigating  mootness  since  Wetherhorn,  with  few  if  any  


corresponding savings in resources spent on merits-based briefing.  


                      In  light  of  these  factors  it  is  clear  to  us  that  our  current  mootness  


jurisprudence, as it applies to the involuntary commitment context, has indeed proved  


to be unworkable in practice.  But that does not answer the question of what a more  


appropriate  rule  would  be.                     To  answer  that,  we  need  to  reconsider  our  mootness  


jurisprudence in more detail.  


                      3.	        The  public  interest  exception  is  categorically  applicable  to  


                                 involuntary commitment appeals.  


                      As explained above, we will hear an otherwise moot case where it falls  


under the public interest exception to mootness.   The State suggests that the public  


interest exception may always be applicable to justify appellate review of involuntary  


commitment orders.  As we have applied it, the public interest exception depends on  


three factors:  "(1) whether the disputed issues are capable of repetition, (2) whether the  


mootness  doctrine,  if  applied,  may  cause  review  of  the  issues  to  be  repeatedly  


           37          Thomas v. Anchorage  Equal  Rights  Comm'n, 102 P.3d  937, 943 (Alaska  

2004)  (quoting  State,  Commercial  Fisheries  Entry  Comm'n  v.  Carlson,  65  P.3d  851,  859  

(Alaska  2003)).  

           38         Khan v. State, 278 P.3d 893, 901 (Alaska 2012) (quoting Thomas, 102 P.3d  


at 943).  


           39         354 P.3d at 1070.  


                                                                    -16-	                                                              7328

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

circumvented, and (3) whether the issues presented are so important to the public interest                                                           

as to justify overriding the mootness doctrine."                                        40  

                         The second factor will always favor applying the exception in involuntary  


commitment appeals:  as we explained in E.P. v. Alaska Psychiatric Institute, "[i]t is  


quite unlikely that an appeal from a 30-day or 90-day commitment, or even a 180-day  


commitment, could be completed before the commitment has expired."41                                                                     And we have  


repeatedly held that some issues in involuntary commitment appeals are important to the  


public interest - the third factor - because an involuntary commitment is a "massive  


curtailment of liberty."42  


                         Wherewehaveconsideredthepublicinterest exception inthepast, wehave  


generally held that disputed questions are not "capable of repetition" when they "turn on  


                                                                     43   In some cases we have applied this rule strictly.  

unique facts unlikely to be repeated."                                                                                                                              


For example, in  Wetherhorn we concluded that the public interest exception did not  


                                                                                                                                          44   Similarly,  

apply because "Wetherhorn was committed based on a specific set of facts."                                                                      


in In re Reid K. we concluded that a sufficiency-of-the-evidence challenge based on the  


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

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

            41           205 P.3d at 1107; see also Joan K., 273 P.3d at 608 (Stowers, J., dissenting)  


("[I]t is practically impossible to perfect an appeal of an order that by its terms will  


expire in 30 days.").  


            42           Wetherhorn, 156 P.3d at 375 (quoting Humphrey v. Cady, 405 U.S. 504,  


509 (1972)); accord In re Tracy C., 249 P.3d 1085, 1090 (Alaska 2011) (quoting E.P.,  


205 P.3d at 1107).  


            43           E.P., 205 P.3d at 1107; see also Tracy C., 249 P.3d at 1094 ("[T]he public  


interest exception to the mootness doctrine applies because Tracy presents a question of  


statutory interpretation that is capable of repetition.").  


            44           156 P.3d at 381.  


                                                                             -17-                                                                       7328

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

alleged unreliability of clinical tests presented as evidence did not fall under the public                                                                   

interest exception because "the trial court is the most appropriate forum in which to                                                                                 

evaluate   and   weigh   competing   fact-based   arguments   regarding   the   reliability  of  


                          However,  in  other  cases  we  have  applied  the  "capable  of  repetition"  


element more flexibly.  For example, in E.P. the appellant raised both legal and factual  


challenges to his commitment order.46                                       The latter included the question whether E.P. -  


whose history of alcohol and inhalant abuse had resulted in organic brain damage,  


dementia, personality disorder, and psychosis47  - met the statutory requirements for  


involuntary commitment.48   We concluded that "E.P.'s fact-based claims are capable of  


repetition to any addict whose substance abuse causes organic brain damage," even if the  



abused substance were something other than inhalants.                                                            


                          On  re-examination,  we  are  persuaded  that  the  "capable  of  repetition"  


element should be applied broadly in the context of involuntary commitment appeals,  


and that a case need not be capable of being repeated identically in order for the public  


interest exception to apply.   Although every involuntary commitment proceeding is  


based  on  a particular set of facts,  such  proceedings  occur  frequently,  and  it is not  


uncommon  for  similar  fact  patterns  to  reoccur,  either  in  a  subsequent  proceeding  


             45           357 P.3d 776, 781 (Alaska 2015).                      

             46           205 P.3d at 1107.  


             47           Id. at 1103-04.  


             48           Id.  at 1107.   

             49           Id.  

                                                                                 -18-                                                                           7328

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

                                                                                                 50                                                                                                   51  

involving   the same respondent,                                                                       or   in a different                                    case entirely.                                  Accordingly,   an  

opinion considering whether acommitment                                                                                         order in                onecasewas                            supportedby                            sufficient  

evidence will likely be useful as guidance by analogy to future commitment proceedings.                                                                                                                                                                              

By contrast, declining review of commitment appeals based on mootness effectively                                                                                                                                                

deprives trial courts of guidance on how to apply the statutory requirements to the facts                                                                                                                                                           

of individual cases.                    

                                        We   conclude   that   appeals   from   involuntary   commitment  orders   are  

categorically subject to the public interest exception, whether the appeal is premised on                                                                                                                                                                 

aquestion                      ofstatutory or constitutional interpretation or on an                                                                                                evidence-based challenge.   

While we reaffirm that the trial court is indeed the correct forum for evaluating and                                                                                                                                                                 

                                                                                                                                                       52  and we therefore will not second- 

weighing the reliability and credibility of evidence                                                                                                                                                                                      

guess the trial court's findings of fact where they are supported by evidence in the  


record, that does not preclude us from considering whether the findings were clearly  


erroneous or whether they were sufficient to satisfy legal requirements.  


                    50                  See id.             (noting that                       the circumstances underlying E.P.'s commitment "were                                                                                             

not only capable of repetition . . . , but they were repeated, because E.P. was committed                                                                                                                                         

three times on the same facts").                                        

                    51                  Compare Mark V. II, 375 P.3d 51, 54 (Alaska 2016) (respondent was found  


"gravely disabled" because of paranoid schizophrenia causing delusions and bizarre  


behavior), with Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 172-73 (Alaska 2009)  


(same); and compare In re Jacob S., 384 P.3d 758, 762-63 (Alaska 2016) (respondent  


was found a danger to others after paranoid delusions caused him to attack his neighbor  


and attempt to set her house on fire on multiple occasions), with In re Reid K., 357 P.3d  


776, 777-78 (Alaska 2015) (respondent was found "likely to cause harm to himself or  


others" after acting on hallucinations instructing him to harm and kill others).  


                    52                  See Reid K., 357 P.3d at 781.  


                                                                                                                           -19-                                                                                                                    7328

----------------------- Page 20-----------------------

                                       4.	                The public interest exception is also categorically applicable to                                                                                                                         

                                                          involuntary medication appeals.                                           

                                       Just like involuntary commitment proceedings, involuntary medication                                                                                                              


proceedings implicate "fundamental constitutional guarantees of liberty and privacy."                                                                                                                                                                        


And medication petitions are virtually always filed in conjunction with a petition for  


involuntary commitment, with hearings on the two petitions often taking place before the  


 same judge on the same day.  As with involuntary commitment appeals, because "it is  


doubtful that an appeal from a medication order could ever be completed within the  



order's period of effectiveness,"                                                                 such cases are likely to routinely evade timely review.  


                                       We have previously held that the public interest exception applies "in order  


to clarify therequirementsforprotecting constitutionalrights in [involuntary medication]  



                                                Although every involuntary medication order is of course based on the  


facts and circumstances of a particular case, similar fact patterns are likely to reoccur.  


By continuing to apply the mootness doctrine to involuntary medication appeals, we  


deprive litigants and the superior court of helpful guidance in applying the statutory  


framework.  We therefore also conclude that the public interest exception categorically  

                    53                Bigley,208                       P.3d at 179 (quoting  Myers v.Alaska                                                                    PsychiatricInst.                               , 138 P.3d     

238, 250 (Alaska 2006)). We observed in                                                                                 Myers : "Side effects aside, the truly intrusive                                                         

nature of psychotropic drugs may be best understood by appreciating that they are                                                                                                                                                               

literally intended to alter the mind. Recognizing that purpose, many states have equated                                                                                                                                            

the intrusiveness of psychotropic medication with the intrusiveness of electroconvulsive                                                                                                               

therapy and psychosurgery." 138 P.3d at 242 (footnote omitted) (first citing                                                                                                                                                Riggins v.   

Nevada, 504 U.S. 127, 134 (1992); then citing                                                                                           Jarvis v. Levine, 418 N.W.2d 139, 146  

 (Minn. 1988);                            In re K.K.B.                        , 609 P.2d 747, 749 (Okla. 1980)).                                            

                    54                Myers, 138 P.3d at 245.  


                    55                Bigley, 208 P.3d at 179 (citing Myers, 138 P.3d at 244).  


                                                                                                                       -20-	                                                                                                                7328

----------------------- Page 21-----------------------

applies to involuntary medication appeals, and we will hear all such appeals on the                                                                                                                




                                5.	            Overturning our mootness jurisprudence would result in more  


                                               good than harm.  


                               Now that we have identified a new and better approach to mootness in the  


involuntary  commitment  and  medication  contexts,  we  must  turn  to  the  second  


requirement to depart from stare decisis, which dictates we "balance the benefits of  



adopting a new rule against the benefits of stare decisis."                                                                               The benefits of reaching the  


merits of involuntary commitment appeals were articulated in the dissenting opinion to  


In re Joan K. :  


                                Of first importance, the citizen's liberty has been alleged to  


                               have  been  wrongfully  taken  by  court  process;  the  court  


                                should afford the citizen the opportunity to prove the error  


                                and, if proven, obtain judicial acknowledgment that the order  


                               was erroneously issued.  Giving the citizen this opportunity  


                               will assure the citizen that she will be heard, and that if a  


                                lower court has erred, that error will not go unnoticed or  


                               unremedied, at least to the extent that the erroneous order will  


                               be reversed and vacated.  Public confidence in the judicial  


                               branch demands that we hold ourselves accountable.  


                                               Second, in this age of prevalent information mining,  


                                collection,   and   storage   into   increasingly   large,   inter- 


                                connected, and searchable data banks, the fact that a citizen  


                               has been involuntarily committed to a mental institution will  

                56             We agree with the concurrence's disavowal of                                                                 Mark V.             's limitation of the                

collateral consequences exception to appeals of a first commitment order; however, we                                                                                                               

are unpersuaded by its criticism of the public interest exception's categorical application                                                                                      

to involuntary admission for treatment appeals.  The magnitude of the interest at stake     

in these cases - the deprivation of liberty - removes them from the concurrence's                                                                                         

concern that this exception will be applied to "routine cases."                                                                 

                57             State v. Carlin, 249 P.3d 752, 761 (Alaska 2011).  


                                                                                                 -21-	                                                                                         7328

----------------------- Page 22-----------------------

                           follow that individual for all of her life.                                    She should be given           

                           the means to effectively challenge that order through appeal                                               

                           regardless of the fact that by the time her appeal is ripe for                                                    

                           decision, the 30 days will have long since expired and she                                                       

                           will   have   been   released  from   State   custody.     The   injury  

                           inflicted   by   an   erroneously   issued   order   of   involuntary  

                           commitment "lives" until the wrong is righted.                                               [58]  

 The same reasoning applies to involuntary medication appeals.  


                           On the other side of the scales are the benefits of stare decisis: "providing  


 guidance for the conduct of individuals, creating efficiency in litigation by avoiding the  


relitigation of decided issues, and maintaining public faith in the judiciary."59  Declining  


to decide such appeals on mootness grounds provides no guidance to the general public,  


 and little to no guidance to litigants and the superior court in involuntary commitment  


 and  medication  proceedings.                                  On  the  contrary,  as  suggested  earlier,  our  mootness  


jurisprudence may in fact have deprived the superior court of guidance in how to apply  


the civil commitment and forced medication statutes to the facts of individual cases.  


                           Second, as discussed above, although our intent was to promote efficiency  


 in litigation, experience has shown that this has not happened.  Because the mootness  


 doctrine as we have applied it depends on the specific circumstances and arguments  


raised on appeal, it has instead caused repeated extended litigation over mootness rather  


than over the actual merits of a case.  


                           Finally, we conclude that to the extent public faith in the judiciary may be  


harmed by our change of direction in this case, the risk is vastly outweighed by holding  


the  judiciary  as  a  whole  accountable  through  merit-based  review  of  involuntary  


 commitment and medication orders.  


              58           273  P.3d  594,  607-08  (Alaska  2012)  (Stowers,  J.,  dissenting).  

              59           Carlin,  249  P.3d  at  761-62.  

                                                                                  -22-                                                                                   7328  

----------------------- Page 23-----------------------

                                   6.	              We   will   hear   all   involuntary   admission   for   treatment   and  

                                                     involuntary medication appeals on the merits.                                                                

                                   For these reasons, we conclude that the public interest exception applies                                                                                                     

categorically   to   appeals   from   orders   for   involuntary   admission   for   treatment  and  


involuntary  medication.                                                                                                                                                                                                  

                                                                         We will hear such cases on their merits even where the  


underlying order has expired and the respondent has been released or no longer subject  



to forced medication. 


                                   Because we conclude that all involuntary admission  for treatment and  


medication appeals are subject to the public interest exception, it is not necessary for us  


to reconsider whether AS 47.30.765 mandates judicial review of otherwise-moot cases,  


and we decline to do so; we similarly do not address Naomi's argument that judicial  


review  on  the  merits  of  commitment  appeals  is  mandated  by  federal  due  process  


concerns.   But to the extent that our prior decisions on mootness in the involuntary  


admission for treatment and medication contexts are inconsistent with this opinion, they  


are overruled.  We emphasize that because our decision here is based on circumstances  

                  60               We   note   that   this   holding   is  not  limited   to   the   kinds   of   involuntary  

commitment and involuntary medication appeals that Naomi and Linda bring here;                                                                                                                                       

rather, it covers appeals of any order for involuntary hospitalization or treatment in the                                                                                                                                 

mental health context.                                       We have previously applied the public interest exception to at                                                                                                   

least one other type of involuntary hospitalization appeal:                                                                                            a due process challenge to an                                         

order authorizing up to 72 hours' confinement for psychiatric evaluation pursuant to                                                                                                                                          

AS 47.30.715.                           See In re Heather R.                                  , 366 P.3d 530, 532 (Alaska 2016);                                                          In re Daniel G.                         ,  

320   P.3d  262,  268  (Alaska   2014).     We   hold   today   that   regardless   of   the   type   of  

involuntary admission or medication proceeding being challenged or the legal basis for                                                                                                                                      

appeal, the public interest exception authorizes us to consider any such appeal on the                                                                                                         


                  61               The parties in futurecommitmentand medication appeals need not brief the  


application of the mootness doctrine or its exceptions, and there is no need for parties in  


superior court proceedings to address collateral consequences for purposes of making a  


record for appellate review.  


                                                                                                            -23-	                                                                                                     7328

----------------------- Page 24-----------------------

unique to appeals from involuntary admission and medication proceedings, our ruling                                                                                                                   

here is limited to such cases and should not be construed as altering in any way our                                                                                                           

approach to mootness in other contexts.                                     

                 B.	             The Superior Courts Did Not Err In Granting API's Commitment                                                                  

                                 Petitions For Naomi And Linda.                                                        

                                 Like the United States Supreme Court, we have characterized involuntary                                                                                

commitment for a mental illness as a "massive curtailment of liberty" that demands due                                                                                                                      

process of law.                      62  


                                           We have also recognized that constitutional rights "extend 'equally to  


mentally ill persons' so that the mentally ill are not treated 'as persons of lesser status or  



dignity because of their illness.' "                                                       Under both the U.S. Constitution and the Alaska  



Constitution, no person may be deprived of liberty without due process of law,                                                                                                                      but we  


have  "declared  Alaska's  constitutional  guarantee  of  individual  liberty  to  be  more  



protective" than its federal counterpart.                                                                   But when a person has been found to be  


gravely disabled, as Naomi has been, the State's power of parens patriae  authorizes it  



to commit her for involuntary treatment.                                                                                                                                                              

                                                                                                              Similarly, when a person has been found  

                 62              Wetherhorn v. Alaska Psychiatric Inst.                                                            , 156 P.3d 371, 375-76 (Alaska            

2007) (first quoting                            Humphrey v. Cady                              , 405 U.S. 504, 509 (1972); then citing                                                      Addington  

v.  Texas, 441 U.S. 418, 425 (1979)).                                 

                 63              See Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 248 (Alaska 2006)  


(quoting Rivers v. Katz, 495 N.E.2d 337, 341 (N.Y. 1986)).  


                 64	             U.S. Const. amend. XIV,  1; Alaska Const. art. I,  7.  


                 65              Myers, 138 P.3d at 245 (citing Breese v. Smith, 501 P.2d 159, 170 (Alaska  



                 66              E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1108 n.24 (citing Rust v.  


State, 582 P.2d 134, 139 n.16 (Alaska 1978)); see also Myers, 138 P.3d at 249 ("The  


doctrine of parens patriae  refers to the inherent power and authority of the state to  



                                                                                                     -24-	                                                                                              7328

----------------------- Page 25-----------------------

likely to cause harm to others, as Linda has been, the State has a compelling interest in                                                                                


protecting the public, grounded in its police power.                                                       


                           1.	          The superior court's finding that Naomi was gravely disabled is  


                                        not clearly erroneous.  


                           A court may issue an order committing an individual to a treatment facility  


for  a  30-day  period  only  if  it  "finds,  by  clear  and  convincing  evidence,  that  the  


 [individual] is mentally ill and as a result is likely to cause harm to [herself] or others or  



is gravely disabled."                           Alaska Statute 47.30.915(9) defines "gravely disabled" as "a  


condition in which a person as a result of mental illness" either:  


                                        (A) is in danger of physical harm arising from such  


                           complete neglect of basic needs for food, clothing, shelter, or  


                           personal safety as to render serious accident, illness, or death  


                           highly probable if care by another is not taken; or  


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


                           severe and abnormal mental, emotional, or physical distress,  


                           and this distress is associated with significant impairment of  


                          judgment,               reason,            or      behavior             causing            a      substantial  

              66           (...continued)  


protect 'the person and property' of an individual who 'lack[s] legal age or capacity.' "  


(alteration in original) (first quoting Pub. Defender Agency v. Superior Court, Third  

                                                                                                                                                             LACK 'S  

Judicial Dist., 534 P.2d 947, 949 (Alaska 1975); and then quoting non sui juris, B 

LAW  DICTIONARY  (8th ed. 2004))).                     

              67           See Wetherhorn, 156 P.3d at 376 n.13 ("A person who presents a danger   

to others is committed under the state's police power.                                                      A person who requires care and                           

treatment is committed through exercise of the state's parens patriae power.  One who  


poses a danger to himself is committed under a combination of both powers."                                                                                (quoting  

Rust v. State            , 582 P.2d 134, 139 n.16 (Alaska 1978)));                                           see also Myers                , 138 P.3d at 248         

(noting that "the state's power of civil commitment sufficed to meet its police-power  


interest" in protecting the public and the patient from the danger posed to herself or  



              68           AS 47.30.735(c).  


                                                                                  -25-	                                                                           7328

----------------------- Page 26-----------------------

                          deterioration   of   the   person's   previous   ability   to   function  


                          We have noted that "[i]t is not enough to show that care and treatment of                                                                  

an individual's mental illness would be preferred or beneficial or even in [that person's]                                                             

                              69       Instead,  for  a  court  to  properly  commit  an  individual  under  

best   interests."                                                                                                                                          

AS 47.30.915(9)(B), there must be "a level of incapacity that prevents the person in  


question from being able to live safely outside of a controlled environment."70   The level  


of incapacity must be severe enough to "justify the social stigma that affects the social  


position and job prospects of persons who have been committed because of mental  



                          Naomi  argues  that  the  evidence  presented  to  the  superior  court  was  


insufficient to support a finding that she was gravely disabled.   She asserts that the  


court's reliance on Dr. Mack's testimony was misplaced because his testimony about her  


housing situation  was "speculative," and that other evidence of her risk of harm if  


released from API was "weak."  She further argues that her willingness to remain in the  


hospital  suggested  a  level  of  amenability  to  treatment  that  brought  her  outside  the  


statutory definition of "gravely disabled."  Naomi's arguments lack merit.  


                          Dr. Mack's uncontrovertedtestimonywasthatNaomididnot havehousing,  


that Naomi's disorder was severe enough that she could not be expected to find housing  


on her own, and that she may not have been able to eat and shower regularly unless API  


             69            Wetherhorn v. Alaska Psychiatric Inst.                                    , 156 P.3d 371, 378 (Alaska 2007)                       

(first alteration in original) (quoting                               In re LaBelle             , 728 P.2d 138, 146 (Wash. 1986) (en                               


             70           In reStephen O., 314 P.3d 1185, 1193 (Alaska 2013) (quoting Wetherhorn,  


 156 P.3d at 378).  


             71            Wetherhorn, 156 P.3d at 378.  


                                                                                -26-                                                                           7328

----------------------- Page 27-----------------------

provided her those amenities.                                                                                                                                                  Naomi acknowledged that she was unable to engage in                                                                                                                                                                                                                                                                          

 discharge   planning   because   "[s]he   talked   over  the   doctors   or   others   trying   to  

 communicate with her" and "sometimes continued shouting even after returning to her                                                                                                                                                                                                                                                                                                                                                                                                                

 own room."                                                             The superior court found that Naomi's delusions of rape and bodily harm                                                                                                                                                                                                                                                                                                                                                                               

 and that her psychiatric status had become "more acute" during the time that she refused                                                                                                                                                                                                                                                                                                                                                                                    

to take medication or to participate in planning her treatment.                                                                                                                                                                                                                                           

                                                                              Naomi points to nothing in the record contradicting Dr. Mack's testimony.                                                                                                                                                                                                                                                                                                                                                                       

Naomi's attorney asked no questions of Dr. Mack and presented no countervailing                                                                                                                                                                                                                                                                                                                                                  

 evidence to the court.                                                                                                        Dr. Mack's testimony supports the court's finding that clear and                                                                                                                                                                                                                                                                                                   

 convincing evidence showed Naomi to be gravely disabled.  The court did not specify                                                                                                                                                                                                                    

whether    it    found    Naomi    gravely    disabled    under    subsection    (A)    or    (B)    of  

AS 47.30.915(9); we conclude that the court did not err in issuing the commitment order                                                                                                                                                                                                                                                                                                                                                                                                  

because uncontroverted evidence supports either or both findings. We affirm the court's                                                                                                                                                                                                                                                                                                                                                                                         

 finding as not clearly erroneous in this case but take this opportunity to remind the                                                                                                                                                                                                                                                                                                                                                                                                              

 superior court of the importance -both for ensuring judicial transparency and for aiding                                                                                                                                                                                                                                                                                                                                                                                           

 appellate review - of specifying                                                                                                                                                                            the precise statutory grounds                                                                                                                                                             on which                                                  it makes   

 findings of grave disability.                                                                        

                                                                              2.	                                    The superior court did not err in determining there was no                                                                                                                                                                                                                                                                                                                       

                                                                                                                     feasible less restrictive alternative to hospitalizing Linda at API.                                                                                                                                                                                                                                                                                                   

                                                                              After a court has found that a person is gravely disabled or poses a danger                                                                                                                                                                                                                                                                                                                

to herself or others, the court must consider whether that person should be involuntarily                                                                                                                                                                                                                                                                                                                                                   

 committed  for  treatment, or whether there is a less restrictive alternative available.                                                                                                                                                                                                                                                                                                                                                                                                                                     

Alaska Statutes 47.30.735(d) and AS 47.30.755(b) authorize commitment only if no                                                                                                                                                                                                                                                                                                                                                                                                                       

 feasible less restrictive alternative treatment is available.                                                                                                                                                                                                                                                                             72  

                                       72                                    In   re Jacob                                                             S.,   384   P.3d 758,                                                                                            768 (Alaska 2016)                                                                                                       (requiring   courts to   


                                                                                                                                                                                                                                                 -27-	                                                                                                                                                                                                                                                                  7328  

----------------------- Page 28-----------------------

                    "We  determine  the  boundaries  of  individual  rights guaranteed  under  the  

Alaska  Constitution  by  balancing  the  importance  of  the  right  at  issue  against  the  state's  


interests   in   imposing   the   disputed   limitation."                    Involuntary   commitment   places   a  

substantial  burden   on   a   fundamental right; accordingly  the   State  must   "   'articulate   a  

compelling  [state]  interest'  and  .  .  .  demonstrate  'the  absence  of  a  less  restrictive  means  

to  advance  [that]  interest.'  "74  

                                            To  that  end,  we  have  concluded  that  "[f]inding  that  no  less  

restrictive       alternative        exists      is    a    constitutional         prerequisite         to    involuntary  


                              a.       A  less  restrictive  alternative  to  involuntary  commitment  

                                       is  not  "feasible"  or  legally  relevant  if  it  does  not  exist.  

                    Linda argues  on  appeal that the superior court erred by rejecting Soteria- 

Alaska  as a     less restrictive  alternative,  and  that  it w            as  therefore  a  violation  of  Linda's  

constitutional  right  to  liberty  to  order  her  committed  to  API.   The  State  posits  that  there  

was no error,   citing   our   statement   in  Bigley   v.  Alaska  Psychiatric  Institute  that   for   a  

program  to  be  considered  a  less  restrictive  alternative,  "the  alternative  must  actually  be  

available,   meaning   that   it   is   feasible   and   would   actually   satisfy   the   compelling   state  

          72        (...continued)  


"consider whether a less restrictive alternative would provide adequate treatment" when  


involuntary commitment is sought); Mark V. II, 375 P.3d 51, 58-59 (Alaska 2016)  


(requiring apetitioner seeking involuntary commitment to proveby clear andconvincing  


evidence that there are no less restrictive alternatives).  

          73       Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 245 (Alaska 2006).  


          74       Id. at 245-46 (alterations in original) (first quoting Ranney v. Whitewater  


Eng'g, 122 P.3d 214, 222 (Alaska 2005); then quoting Sampson v. State, 31 P.3d 88, 91  


(Alaska 2001)).  


          75       Mark V. II, 375 P.3d at 59.  


                                                             -28-                                                       7328

----------------------- Page 29-----------------------


interests that justify the proposed state action."                                                                                             Accordingly, the State argues that                                                        

"[b]ecause Soteria-Alaska is closed, it is neither 'available' nor 'feasible' as an option  

for Linda." Linda argues in response that the State reads                                                                                                   Bigley 's feasibility requirement                     

too   narrowly   and   that   "Soteria-Alaska   was   not  infeasible   just   because   it   had   been  

closed." Quoting language from our decision in                                                                                        State v. Alaska Laser Wash, Inc.                                                          , Linda   

asserts   that   "feasible"   means   "[c]apable   of   being   accomplished   or  brought   about;  

                            77       Using that definition, Linda concludes that "Soteria-Alaska was clearly  


feasible because it had operated quite well for seven years."  


                                      Linda's argument is not persuasive, as it fails to consider for whom  an  


alternative is feasible. In essence, Linda's argument is that because it would be possible  


for the State to establish and operate a mental health facility and program similar to  


 Soteria-Alaska, which was a private facility, the superior court was required to consider  


 Soteria-Alaska a "feasible" less restrictive alternative to hospitalization. But whether or  


not it might be feasible, possible, or even advisable for the State to establish a facility and  


                                                                        78   with  or  without  additional  funding  from the  legislature,  

operate  such  a  program,                                                                                                                                                                                          


committing Linda to Soteria-Alaska or another Soteria-like setting was not an option for  


                   76                 208 P.3d 168, 185 (Alaska 2009).                                             

                   77                 382   P.3d   1143,   1152   (Alaska   2016)   (alteration   in   original)   (quoting  

Feasible, A                      MERICAN  HERITAGE  DICTIONARY  (5th ed. 2014)).                                                                                             Alaska Laser Wash                                      arose  

from an inverse condemnation claim by a car wash owner; in that case, we decided that                                                                                                                                                     

the "feasibility, rather than reasonableness," of relocating a business "is the correct                                                                                                                                        

 standard for analyzing whether a business owner may recover business-loss damages                                                                                                                                         

when the State condemns the business owner's property."                                                                                                             Id.   The case did not involve                             

the question whether a less restrictive alternative existed to infringing on a persons                                                                                                                                       

constitutional   rights.     Thus,   beyond   providing   a   dictionary   definition   of   the   word  

"feasible," our decision in                                                Alaska Laser Wash                                       is not relevant to the discussion here.                                                                    

                   78                 We draw no conclusions and express no opinion on whether this is the case.  


                                                                                                                    -29-                                                                                                              7328

----------------------- Page 30-----------------------

the superior court. The court was faced with the question what to do about Linda, whom                                                                                                                                                 

the jury had found to be mentally ill and a danger to others; the court needed to answer                                                                                                                                             

that question with one of the options actually available to it at the time of the hearing.                                                                                                                                                                  

                                                                                                                                                                                                               79  and sending  

Because Soteria-Alaska was closed, it was not "actually . . . available,"                                                                                                                                            

Linda there was not feasible.  The State had no duty to re-open the private facility or to  


establish and operate a similar facility to meet its burden in this case.  


                                                          b.	                The superior court did not clearly err in finding that no  


                                                                             less restrictive alternative existed.  


                                       Whether or not Linda's proposed alternative - Soteria-Alaska - was  


feasible, the State had the burden to show by clear and convincing evidence that no less  


restrictive alternative to commitment existed.80  


                                                                                                                                        To that end, the parties explored several  


possible  alternatives,  including  outpatient  community  support  and  assisted  living  


facilities.  The superior court found that a viable alternative would need to "protect the  


public from the harm of delusions where [Linda] might believe she's being chased by  


others and cause traffic accidents" or might "react[] in a physical manner." It also found  


that when Linda becomes agitated, it happens rapidly, which "could cause others to react  


to her [and cause] her to take actions that pose risks to the public." The court concluded  

                   79                 Bigley, 208 P.3d at 185.                                                    The issue raised in                                         Bigley   - whether a less                                      

intrusive alternative to psychotropic medication was available - is not identical to the                                                                                                                                                        

issue   Linda   raises   here:     whether   a   less   restrictive   treatment   than   commitment  is  

available.   See id.                              at 185-86. But because both inquiries balance "the fundamental liberty                                                                                                              

and privacy interests of the patient against the compelling state interest[s]" of protecting                                                                                                                                

disabled individuals and the public, and because both require a finding that no less                                                                                                                                                         

intrusive or less restrictive alternative exists, the court must perform substantially the                                                                                                                                                      

 same feasibility analysis in each case.                                                                       Id.  at 185;                    see Mark V. II                            , 375 P.3d at 59.                     

                   80                 Mark V. II, 375 P.3d at 58. Evidence is clear and convincing if it "produces  


in the trier of fact a firm belief or conviction about the existence of a fact to be proved."  


Bigley, 208 P.3d at 187 (quoting Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994)).  


                                                                                                                       -30-	                                                                                                               7328

----------------------- Page 31-----------------------

that none of the proposed less restrictive alternatives would protect the public "from the                                                                                                    

danger to others that [Linda] currently [poses]," and that Linda needed "a facility like                                                                                                    

API that is locked and . . . provides 24/7 care."                                                         81  


                               In short, we find no clear error in the superior court's finding that no  


 feasible less restrictive alternative to involuntarily committing Linda to API existed. We  


therefore affirm the superior court's commitment order in her case.  


                C.	            The  Superior  Court  Did  Not  Err  In  Granting  API's  Involuntary  


                              Medication Petition For Naomi.  


                              After a court has ordered an individual involuntarily committed, the State  


may forcibly administer psychotropic medication in a non-crisis situation only if the  


individual "is determined by a court to lack the capacity to give [or withhold] informed  


consent"  to  the  medication,  and  the  State  demonstrates  "by  clear  and  convincing  


evidence that the involuntary administration of psychotropic medication is in the best  



interests of the patient and that no less intrusive alternative treatment is available." 

Naomi asks us to vacate the involuntary medication order in her case, arguing that the  


 superior court erred in finding that administration of medication was in her best interests  


and in finding that there was no less intrusive alternative.  Both claims rely on already- 


rejected interpretations of applicable law.  


               81             Linda has not challenged the court's finding that the State's interest in                                                                                        

protecting the public required placing her in a locked facility with 24/7 care.                                                                                    

               82             Bigley, 208 P.3d at 179-80 (first citing AS 47.30.836; then citing Myers v.  


Alaska Psychiatric Inst. , 138 P.3d 238, 249-50 (Alaska 2006)).  


                                                                                              -31-	                                                                                      7328

----------------------- Page 32-----------------------

                                1.	            The superior court did not err in its consideration of the best                                                                                   

                                               interests factors.   

                               In   Myers   v.   Alaska   Psychiatric   Institute   we   drew   upon   the   statutory  

framework for informed consent to the administration of psychotropic medication to                                                                                                                          

articulate factors that a court must consider in making a best interests determination for                                                                                                          

the involuntary administration of psychotropic drugs:                                                                         83  


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


                               prognosis, or their predominant symptoms, with and without  


                               the medication;  


                                               (B)  information  about the proposed  medication,  its  


                               purpose, the method of its administration, the recommended  


                               ranges of dosages, possible side effects and benefits, ways to  


                               treat  side  effects,  and  risks  of  other  conditions,  such  as  


                               tardive dyskinesia;  


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


                               medicationhistory and previous sideeffectsfrommedication;  


                                               (D) an explanation of interactions with other drugs,  


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




                                               (E) information about alternative treatments and their  


                               risks,  side  effects,  and  benefits,  including  the  risks  of  


                83              138 P.3d at 252 (directing courts to apply AS 47.30.837(d)(2)'s informed                                                                              

consent factors to the best interests determination).                                                                    

                84             Id. (quoting AS 47.30.837(d)(2)).  


                                                                                                 -32-	                                                                                         7328

----------------------- Page 33-----------------------


We stated that these factors are "crucial in establishing the patient's best interests,"                                                                 and  


we further explained in                    Bigley  that "their consideration by the trial court is mandatory."                                                   


We call these the "Myers factors."                                   



                         But Myers also discussed a second set of best interests principles derived  


from a Minnesota Supreme Court decision:  


                                     (1)  the  extent and  duration  of changes in  behavior  


                        patterns and mental activity effected by the treatment;  


                                     (2) the risks of adverse side effects;  


                                     (3) the experimental nature of the treatment;  


                                     (4) its acceptance by the medical community of the  


                         state; and  

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



                         the pain connected with the treatment. 

We refer to them as the "Minnesota factors"89  and explained in Bigley that "to the extent  


they differ from the Myers factors, their consideration by Alaskan courts is favored but  


not mandatory."90  


                        Naomi concedes that thesuperior court assessedthepetitionfor involuntary  


administration of medication according to the mandatory Myers factors. She argues that  


the court nonetheless erred because In re Gabriel C.  requires the court to apply the  


            85          Id. ;  accord Bigley              , 208 P.3d at 180.

            86           208 P.3d at 180.

            87          Id.

            88           138 P.3d at 252 (citing Price v. Sheppard, 239 N.W.2d 905, 913 (Minn.  



            89          Bigley, 208 P.3d at 180.  


            90          Id. at 180-81.  


                                                                            -33-                                                                      7328

----------------------- Page 34-----------------------


 Minnesota factors to its analysis.                        While our opinion in that case does refer to the                        


 Minnesota   factors   in   its   discussion   of   Myers,                                                                         

                                                                               it  misquoted  Myers  as  making  the  


 Minnesota factors mandatory and does not alter the analytical framework established by  


Myers  and  Bigley.               We  reiterate  that  the  Minnesota  factors  offer  "  'helpful'  and  


 'sensible' "guidance in determining whetherinvoluntary medication is inapatient's best  

                                                                                                      93  The superior court,  


 interests, but they are not a mandatory component of the analysis. 

therefore,  did  not err  by  not considering  the Minnesota factors in  its best interests  



                     2.	        The superior court did not err in determining that there was no  


                                less intrusive alternative to medication.  


                     In order to administer psychotropic medication without a patient's consent,  


the State must also  show by  clear  and  convincing  evidence "that no  less intrusive  


 alternative treatment is available."94  


                                                            Determining whether a less intrusive alternative  


 exists involves both "a balancing of legal rights and interests" and a factual inquiry into  

                                    95    The  legal  balancing  weighs  "the  fundamental  liberty  and  


 alternative  treatments. 

privacy interests of the patient against the compelling state interest under its parens  


patriae authority to 'protect "the person and property" of an individual who lack[s] legal  


           91        324  P.3d  835,  840  (Alaska  2014).  

           92        Id.  

           93        Bigley,  208  P.3d  at  180-81  (quoting  Myers,  138  P.3d  at  252).   We  disavow  

 any  erroneous  statements  to  the  contrary.   Cf.  In  re  Jacob  S.,  384  P.3d  758,  772  (Alaska  

 2016);  Gabriel  C.,  324  P.3d  at  840.  

           94        Bigley, 208 P.3d at 180.  


           95        Id. at 185.  


                                                                 -34-	                                                          7328

----------------------- Page 35-----------------------


age or capacity.' "                   This is interwined with the factual assessment of "the feasibility and                                               


likely effectiveness of a proposed alternative."                                                                                                   

                                                                                          A proposed alternative "must actually  


be available, meaning that it is feasible and would actually satisfy the compelling state  



interests that justify the proposed state action." 

                         Naomi argues that our opinion in Bigley  obligates the superior court to  


"weigh the liberty interests of the patient and the feasibility of alternative treatments  


expressly in its findings" and that it was error not to do so.  She cites Bigley 's direction  


that courts "must balance the fundamental liberty and privacy interests of the patient  


against the compelling state interest."99   The State argues that Bigley 's directive does not  


require  the  trial  court  to  weigh  these  factors  expressly,  but  rather  reiterates  the  


overarching principle articulated in Myers that "[w]hen no emergency exists . . . the state  


may override a mental patient's right to refuse psychotropic medication only when  


necessary to advance a compelling state interest and only if no less intrusive alternative  


              100   We agree with the State in observing that in Bigley we did not ask trial courts  


to expressly weigh the patient's liberty and privacy interests against the State interest in  


administering  the  medication.                                  Rather,  the  balancing  of  these  two  interests  is  


encompassed in the less intrusive alternative inquiry, which requires courts to consider  


both  the  availability  of  alternatives  to  medication  and  the  feasibility  of  those  


            96           Id.   (alteration in original) (quoting                           Myers, 138 P.3d at 249).

            97           Id.

            98           Id.


            99           Id.

             100         Myers, 138 P.3d at 248.

                                                                            -35-                                                                       7328

----------------------- Page 36-----------------------


alternatives.             The   superior   court   therefore   did   not   err   in   not   explicitly   weighing  

Naomi's   liberty   and   privacy   interests   against   the   State's   interest   in   administering  



                     Naomi also argues that the evidence considered by the superior court was  


insufficient to establish that there was no less intrusive alternative to medication.  In  


determining that there existed no less intrusive alternative to forced medication, the court  


found that "[w]ithout the administration of the medication at issue there would be no  


improvementbutonly further decompensation as to [Naomi's]mental functioning." The  


court heard testimony that Naomi's mental health had worsened during the period in  


which she refused to take medication.  And it credited Dr. Mack's testimony that the  


medication was needed because Naomi could not benefit from less intrusive alternatives  


without it:  "[A]ll present paradigm psychiatric literature," Dr. Mack testified, "reflects  


[that medications] are the absolute cornerstone and foundation to success."   Naomi  


correctly observes that "[w]hile the doctor's perspective [on this issue] is relevant, it is  


not dispositive," but Naomi neither challenged Dr. Mack's perspective at the evidentiary  


hearing nor proposed any alternatives to medication - feasible or otherwise.   The  


superior court was entitled to rely on Dr. Mack's analysis in reaching its conclusion, and  


it  was  not  clearly  erroneous  to  find  that  there  was  no  less  intrusive  alternative  to  


          101        Bigley, 208 P.3d at 185.         

          102        Cf. Kiva O. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 408 P.3d 1181, 1190 (Alaska 2018) (holding that "Myers requires only that the  


court consider the relevant factors; it does not dictate the weight the court gives them").  


                                                                -36-                                                          7328

----------------------- Page 37-----------------------


V.        CONCLUSION  


                    We  hold  that  all  appeals  from  orders  for  involuntary  admission  for  


treatment  and  involuntary  medication  categorically  fall  under  the  public  interest  


exception to the mootness doctrine.  We therefore consider the merits of  Linda's and  


Naomi's appeals.  We AFFIRM the superior court's commitment order in Linda's case  

because the superior court did not clearly err in finding that no feasible less restrictive  


alternatives to commitmentexisted. Wealso AFFIRMthecommitment orderinNaomi's  


case because the superior court did not clearly err in finding that Naomi was gravely  


disabled.   And because we discern no  error in the superior court's issuance of the  


medication order in Naomi's case, we AFFIRM the involuntary medication order.  

                                                             -37-                                                       7328

----------------------- Page 38-----------------------

 BOLGER, Justice, concurring.                           

                                       I agree with the court's ultimate conclusion that the mootness doctrine does                                                                                                                          

 not apply to these cases.  But I would reach this conclusion on different grounds.  The                                                     

 court's reliance on the public interest exception to the mootness doctrine is misplaced.                                                                                                                                                                    

 The court concludes that every commitment case involves important issues that are                                                                                                                                                              

 capable of repetition because "an opinion considering whether a commitment order in                                                                                                       

 one case was supported by sufficient evidence will likely be useful as guidance by                                                                                                                                                               

                                                                                                                               1  But as we have recognized, this reasoning  

 analogy to future commitment proceedings."                                                                                                                                                                                   

 could justify review of "every moot case in general."2  


                                                                                                                                                                I am concerned that our review  


 of such routine controversies on public interest grounds will undermine the basis for the  


 public interest exception.  


                                       We decline to address moot controversies because "the very nature of our  


judicial systemrenders it incapable of resolving abstract questions or of issuing advisory  

                                                                                                                                     3    If the controversy is moot, the litigants  


 opinions which can be of any genuine value." 

 have less incentive to make their best arguments.4                                                                                                    And regardless of the arguments'  


 quality, we will "lay down rules that may be of vital interest to persons" who will face  


 future proceedings - this is "a harsh rule" for future litigants, who will be bound by  


                    1                  Supra  page   19.  

                    2                  In  re  Gabriel  C.,  324  P.3d  835,  840  (Alaska  2014).   

                    3                  Moore  v.  State,  553  P.2d  8,  23  n.25 (Alaska   1976),  superseded  on  other  

grounds  by  statute.  

                    4                  State  v.  Keep,  409  P.2d   321,   325   (Alaska   1965)   (citing   United  States  v.  

Evans,  213  U.S.  297,  300  (1909)).  

                                                                                                                       -38-                                                                                                                 7328

----------------------- Page 39-----------------------

decisions where opposing views were not vigorously presented because the controversy                                         

was moot.        5  

                       The collateral consequences doctrine, in contrast, "allows courts to decide  


otherwise-moot cases when a judgment may carry indirect consequences in addition to  


its direct force."6   Several years ago we recognized that the collateral consequences from  


a person's first involuntary commitment order were sufficient to require review of an  


otherwise-moot appeal.7  But we later decided that the collateral consequences exception  


did not apply to a respondent who had previous commitment orders because we were  


"unconvinced  that  the  mere  possibility  of  additional  but  unparticularized  collateral  


consequences automaticallyjustifiessubstantivereviewofeverysubsequentinvoluntary  


commitment order entered against a respondent."8  


                      I disagree with the latter proposition.  There is no evidence that a previous  


commitment  order  inoculates  the  respondent  from  the  general  consequences  of  a  


 subsequent commitment; I would not require any additional showing to allow review.  


We do not require such a showing in the criminal law; instead we decide criminal cases  


even  after  defendants  complete  their  sentences  because  we  assume  that  a  criminal  


judgment always carries collateral consequences. 9                                     Many other state courts similarly  


           5          Id.  (quoting  Evans,  213  U.S.  at  300).  

           6          In re  Joan  K.,  273  P.3d  594,  597-98  (Alaska  2012)  (quoting  Peter A. v.  

State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  Servs.,   146  P.3d  991,  994-95  

(Alaska  2006)).  

           7          Id. at 598.  


           8          In re Mark  V., 324 P.3d 840, 845 (Alaska 2014).  


           9          See  State  v.  Carlin,  249  P.3d  752,  764  (Alaska  2011)  (holding  that  a  


deceased defendant's appeal was not moot).  


                                                                     -39-                                                              7328

----------------------- Page 40-----------------------


 allow review of expired involuntary commitment orders.                                                                                                                                                                                                                                                                                        I would review these orders                                                                                                   

because they have continuing collateral consequences.                                                                                                                                                                                 

                                       10                                    See In re Walter R                                                                                       ., 850 A.2d 346, 350 (Me. 2004) (holding that collateral                                                                                                                                                                                                              

 consequences ofan involuntary                                                                                                                                                     commitmentorderprecludedapplicationofthemootness                                                                                                                                                                                                                         

 doctrine);   State v. K.J.B.                                                                                                                     , 416 P.3d 291, 298 (Or. 2018) (denying motion to dismiss                                                                                                                                                                                                                                                         

 appeal because state had not shown the absence of collateral consequences);                                                                                                                                                                                                                                                                                                                                                                                       State v.   

K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) (holding that the mootness doctrine did not apply                                                                                                                                                                                                                                                                                                                                                                                           

 to an expired involuntary commitment order);                                                                                                                                                                                                                             State v. J.S.                                                        , 817 A.2d 53, 56 (Vt. 2002)                                                                                                    

 (recognizing the continuing effects of negative collateral consequences, including legal                                                                                                                                                                                                                                                                                                                                                                                            

 disabilities and social stigma, from being adjudicated mentally ill and then involuntarily                                                                                                                                                                                                                                                                                                                                            

hospitalized);  In re Det. of H.N.                                                                                                                                                              , 355 P.3d 294, 298 (Wash. App. 2015) (permitting                                                                                                                                                                                              

review of expired involuntary commitment order due to likely collateral consequences).                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                              -40-                                                                                                                                                                                                                                    7328

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