In Re the Necessity for the Hospitalization of Jacob S.

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

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

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email

corrections@akcourts.us.

THE SUPREME COURT OF THE STATE OF ALASKA

In the Matter of the Necessity )

for the Hospitalization of ) Supreme Court Nos. S-15847/15868

)

JACOB S. ) Superior Court No. 3AN-14-03156 PR

)

) OPINION

)

) No. 7133 – November 18, 2016

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

Judicial District, Anchorage, Patrick J. McKay, Judge.

Appearances: Meg Allison Zaletel, Zaletel Law, Anchorage,

for Appellant. Dario Borghesan, Assistant Attorney General,

Anchorage, and Craig W. Richards, Attorney General,

Juneau, for Appellee.

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

Bolger, Justices.

WINFREE, Justice.

I. INTRODUCTION

The respondent in involuntary commitment and medication proceedings

appeals a number of issues related to findings that he was mentally ill and posed a risk

of harm to others. The superior court ordered both 30- and 90-day commitments — the

latter following a jury trial. The court also entered medication orders after finding the

respondent unable to make mental health treatment decisions.

Primary among the issues the respondent raises are two legal questions.

First, when a respondent requests a jury trial on a 90-day commitment petition, who —

between the jury and the court — decides the factual underpinning for and the ultimate

question of least restrictive alternative to commitment? We conclude that this decision

making is for the court. Second, AS 47.30.837(d)(1) sets out a four-part test — joined

by the conjunctive “and” — for determining whether a respondent is competent to make

mental health treatment decisions; can a respondent be found incompetent if one part is

not met? We conclude that the answer is “yes.”

With these conclusions in mind, we resolve the issues raised by the

respondent in the State’s favor. We therefore affirm the superior court’s commitment

and medication orders.

II. FACTS AND PROCEEDINGS

Jacob S.1 was hospitalized for a mental health evaluation in January 2015,

after his domestic partner filed an involuntary commitment petition because Jacob

stopped taking his medication, she observed him experiencing paranoid delusions about

their neighbor, and she thought his delusions had caused him to act violently toward their

neighbor. After an evaluation Dr. David Mack at Alaska Psychiatric Institute (API) filed

a 30-day commitment petition asserting that Jacob had a mental illness and was likely

to cause harm to himself or others. Dr. Mack also petitioned for court approval to

administer psychotropic medication because Jacob lacked capacity to give informed

consent.

A magistrate judge held a hearing on the petitions. Both Jacob’s neighbor

and Jacob’s partner testified telephonically. Jacob’s neighbor testified that Jacob had

filed a restraining order against her in November 2014 alleging that she was stalking him,

1

A pseudonym has been used to protect the respondent’s privacy.

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had broken into his house, and had been tasing him with a “stop gun.” The neighbor also

testified to her suspicion that Jacob had thrown a rock through her window and

attempted to set fire to her house with a “Molotov cocktail” on two separate occasions

the previous month.

Jacob’s partner testified that she recognized several bottles from the

“Molotov cocktail” incident as having come from their house. She also testified that

Jacob had been doing “strange things” and then did not remember what he had done, for

example connecting an electric welder to their house’s back door. He had unplugged the

telephone then denied doing so. He layered towels, cardboard, newspaper, and pillows

over the house’s windows and couch to protect himself from the neighbor’s “tasing.”

Dr. Mack testified about Jacob’s delusional disorder diagnosis. Dr. Mack

was concerned that Jacob’s strange behavior concerning his neighbor was connected to

his fixed delusions, but Dr. Mack thought psychotropic medication might soften those

delusions. Jacob refused to acknowledge he was suffering from delusional disorder, and

he had not yet received medication.

Finding that Jacob suffered from a mental illness and posed a risk of danger

to others, the magistrate judge recommended the 30-day commitment. The magistrate

judge then addressed the medication petition. The court-appointed visitor testified that

although Jacob “demonstrate[d] rational thought process in regards to medications,” his

inability to recognize his mental illness meant “he would not have the capacity based on

that particular reason alone.” Dr. Mack stated that treatment methods other than

psychotropic medication would not be successful and that Jacob could meaningfully

participate in treatment decisions only if he recognized his disorder. The magistrate

judge found that Jacob lacked capacity to give informed consent, that medication was in

Jacob’s best interests, and that no less restrictive alternative was available. The superior

court approved and adopted these findings and issued the orders.

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Dr. Mack filed another petition in February for a 90-day commitment order

and an accompanying petition to continue administration of psychotropic medication.

Jacob requested a jury trial.2 Much of the trial testimony concerned Jacob’s mental

health and actions prior to his original commitment and was repetitious of that given at

the 30-day commitment hearing. Jacob’s brother testified that he was willing to provide

housing if Jacob were released from API. Because Jacob’s brother’s residence is only

two blocks away from Jacob’s, the State questioned whether that placement would

protect Jacob’s neighbor. Jacob’s brother responded that he would monitor Jacob and

prevent him from returning there. Timothy Mannen, a board-certified psychiatric nurse

practitioner at API, testified that someone with Jacob’s delusions would not simply get

better over time and that merely moving Jacob to a new residence would not alleviate the

delusions. Mannen stressed that although treatments other than commitment and

medication, like therapy, are available, it is difficult to convince a person suffering from

delusional disorder to “restructure or realize that what . . . they are thinking that is fixed

and false and disordered is not true.”

The jury found that Jacob was mentally ill; that as a result he was likely to

cause harm to others; and that he was advised of, but did not accept, voluntary treatment.

The superior court then held a further evidentiary hearing to decide whether a less

restrictive alternative to commitment existed and whether involuntary medication was

in Jacob’s best interests. Jacob testified, expressing a willingness to take medication and

participate in therapy if he were released to a family member’s home. Mannen testified

that placement with a family member was not appropriate because Jacob’s response to

the medication was not yet “robust” enough. The court visitor who had interviewed

2

AS 47.30.745(c) entitles a 90-day commitment petition respondent to a jury

trial on request. In contrast no similar right is provided under AS 47.30.735(b)(1)-(9)

for a 30-day commitment petition.

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Jacob a week earlier testified that he did not have the capacity to participate in his

treatment planning. The court determined that until Jacob’s delusions softened, releasing

him to a family member would not adequately protect the public. The court also

expressed doubt that Jacob would take his medication if released from API. The court

determined that no less restrictive alternative to commitment at API existed at that time,

and that medication was in Jacob’s best interests.

Jacob appeals, arguing that allowing telephonic testimony at the 30-day

hearing violated his due process rights and was an abuse of discretion and that the 30­

and 90-day commitment orders and the medication orders were erroneously issued. The

State contends that the superior court’s rulings were correct and that Jacob’s challenges

to the medication orders are moot.

III. STANDARDS OF REVIEW

We review a trial court’s decision to allow telephonic testimony for abuse

of discretion.3 “We will find an abuse of discretion when the decision on review is

manifestly unreasonable.”4 “Factual findings in involuntary commitment or medication

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

a “definite and firm conviction that a mistake has been made.”5 Whether those findings

meet the involuntary commitment and medication statutory requirements is a question

3

See Richard B. v. State, Dep’t of Health & Soc. Servs., Div. of Family &

Youth Servs., 71 P.3d 811, 817 (Alaska 2003) (citing Midgett v. Cook Inlet Pre-Trial

Facility, 53 P.3d 1105, 1109 (Alaska 2002)).

4

Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508

(Alaska 2015) (citing Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 668, 671 (Alaska 2005)).

5

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

(citing Martin N. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth Servs.,

79 P.3d 50, 53 (Alaska 2003)).

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of law we review de novo.6 “We apply our independent judgment to the interpretation

of both the Alaska Constitution and statutes, adopting ‘the rule of law that is most

persuasive in light of precedent, reason, and policy.’ ”7 We use our independent

judgment to determine if a pending controversy is moot.8

IV. DISCUSSION

A. The 30-Day Commitment Order

1. It was not error to allow telephonic testimony at the hearing.

Jacob asserts that it was a violation of his due process rights to allow his

partner and his neighbor to testify telephonically at the 30-day hearing because their

credibility was a central issue. “A civil litigant’s right to confront witnesses is . . .

founded upon notions of procedural due process,” and the question we must decide is

“whether due process, in this case, necessitates that” Jacob “be afforded the right to

[confront]” the witnesses in person rather than telephonically.9 Alaska uses the Mathews

v. Eldridge three-part balancing test “for determining the necessary extent of due

process” in the commitment context.10 We consider:

6

Id.

7

Id. (footnotes omitted) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6

(Alaska 1979)) (first citing Grinols v. State, 74 P.3d 889, 891 (Alaska 2003); then citing

Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235, 1237 (Alaska 2001)).

8

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)).

9

See In re A.S.W., 834 P.2d 801, 805 (Alaska 1992) (citing Thorne v. State,

Dep’t of Pub. Safety, 774 P.2d 1326, 1332 (Alaska 1989)) (determining whether due

process required civil litigant be given the right to confront witness against him).

10

Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 181 (Alaska 2009) (citing

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

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First, the private interest that will be affected by the official

action; second, the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value,

if any, of additional or substitute procedural safeguards; and

finally, the Government’s interest, including the function

involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would

entail.[11]

Involuntary commitment imposes a serious limitation on an individual’s

liberty interest,12 and Jacob’s insistence that witnesses testify in person thus implicates

a private interest of significant weight.

We have previously examined the risk of erroneous deprivation of a right

and stated that “[a]lthough the due process analysis is a flexible and contextual one

focusing on the interest and not the outcome, there must be some actual prejudice under

the second prong and not merely the ‘theoretical possibility of prejudice.’ ”13 This means

Jacob must show that he “was likely to have achieved a more favorable outcome” had

the witnesses testified in person.14 Jacob’s attorney cross-examined the witnesses, but

chose not to attack their credibility during the cross-examination. When Jacob’s attorney

objected to the telephonic testimony, the magistrate judge responded that he would “be

11

Id. (quoting Whitesides v. State, Dep’t of Pub. Safety, Div. of Motor

Vehicles, 20 P.3d 1130, 1135 (Alaska 2001) (setting out Mathews balancing test)).

12

Wetherhorn, 156 P.3d at 375-76 (noting that involuntary commitment

represents a “massive curtailment of liberty” (quoting Humphrey v. Cady, 405 U.S. 504,

509 (1972))).

13

Paula E. v. State, Dep’t of Health &Soc. Servs., Office of Children’s Servs.,

276 P.3d 422, 433 (Alaska 2012) (footnote omitted) (quoting D.M. v. State, Div. of

Family & Youth Servs., 995 P.2d 205, 212 (Alaska 2000)).

14

Id.

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careful” about credibility issues. Because Jacob’s right to cross-examine the witnesses

was protected and he made no express attempt to bring their credibility into question, we

cannot easily conclude that a different result would have been reached had the witnesses

testified in person.

The State’s asserted interest is in providing evidence quickly so that

“potentially dangerous people will [not] be released from the hospital without treatment

that protects them and the community.” Involuntary commitment hearings must occur

within 72 hours of the respondent’s initial detention,15 requiring flexibility in gathering

evidence to meet the deadline. We recognize the significant weight of the State’s interest

in protecting respondents and the community by providing evidence within that short

time period.

Because the low erroneous deprivation risk and the State’s great health and

public safety interest tip the scale in the State’s favor — even balanced against Jacob’s

significant liberty interest — we conclude that telephonic testimony at the 30-day

hearing did not deprive Jacob of his due process rights.

In addition to his due process argument, Jacob contends that the magistrate

judge abused his discretion because no good cause existed for the witnesses to appear

telephonically. Courts have discretion to allow a witness to appear telephonically at a

hearing “for good cause and in the absence of substantial prejudice to opposing

parties.”16 The State expressed doubt that the witnesses could arrive at the hearing in a

timely manner, in part because one witness is wheelchair bound; both witnesses also had

protective orders in place against Jacob. The record supports that there was good cause

for allowing telephonic testimony and Jacob has failed to establish any resulting

15

AS 47.30.725(b).

16

Alaska R. Civ. P. 99.

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prejudice. We therefore conclude that the magistrate judge did not abuse his discretion

in allowing the telephonic testimony.

2. The 30-day order was not erroneously issued.

At the conclusion of a 30-day commitment hearing a court “may commit

the respondent to a treatment facility . . . if it finds, by clear and convincing evidence,

that the respondent is mentally ill and as a result is likely to cause harm to the respondent

or others.”17 The respondent is “likely to cause serious harm” if the respondent “poses

a substantial risk of harm to others as manifested by recent behavior causing, attempting,

or threatening harm, and is likely in the near future to cause physical injury, physical

abuse, or substantial property damage to another person.”18

The superior court found that Jacob was mentally ill and was likely to cause

harm to others as a result of his mental illness because of: (1) Jacob’s partner’s “serious

concerns” about Jacob “doing things . . . that he was disavowing any knowledge of,”

including connecting an electric welder to their home’s metal door; (2) his partner’s

recognition of “the bottles used to make the so-called Molotov cocktails . . . from her

own house”; (3) his partner’s testimony that there were “a couple incidents” involving

“dangerous things occurring”; and (4) Dr. Mack’s statements about whether Jacob’s

“delusions . . . [and] fixed false beliefs, [were] resulting in behavior that poses a

substantial risk to others.”

Jacob does not challenge the finding that he was mentally ill. But Jacob

urges us to review de novo the superior court’s decision regarding harm to others

because Jacob “was committed based on speculation and not on facts sufficient to meet

a clear and convincing standard of proof.” We decline to do so because Jacob’s

17

AS 47.30.735(c).

18

AS 47.30.915(12)(B); In re Joan K., 273 P.3d 594, 598 (Alaska 2012).

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argument, though couched as a legal question, simply asks us to reweigh the evidence

presented at the 30-day hearing and choose between conflicting interpretations. We will

not overturn a fact finding unless left “with a definite and firm conviction that a mistake

has been made.”19 Conflicting evidence is generally insufficient to overturn a fact

finding, and we will not reweigh evidence if the record supports the court’s finding.20

Jacob’s partner testified that she was concerned for her safety because of

his actions. She stated that she recognized the bottles used to set fire to their neighbor’s

house as coming from her house. The neighbor’s testimony also supports the court’s

inference that Jacob had been involved with both the rock and “Molotov cocktail”

incidents. Dr. Mack described the danger of Jacob’s delusional disorder as his false

beliefs about his neighbor manifesting in actions like “setting dangerous booby traps,

taking preemptive activities, or going to extreme measures to ensure security.” Because

evidence in the record supports the court’s finding, we cannot say it is clearly erroneous.

Accordingly, the 30-day order was not erroneously issued.

B. The 90-Day Commitment Order

1. The 30-day order did not taint the 90-day order.

Alaska Statute 47.30.740(c) allows “findings of fact relating to the

respondent’s behavior made at a 30-day commitment hearing under AS 47.30.735” to

be admitted as evidence, and those findings “may not be rebutted except that newly

19

In re Tracy C., 249 P.3d 1085, 1089 (Alaska 2011) (citing Wetherhorn v.

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

20

Christina J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s

Servs., 254 P.3d 1095, 1103 (Alaska 2011) (“Conflicting evidence is generally

insufficient to overturn the superior court, and we will not reweigh evidence when the

record provides clear support for the superior court’s ruling.”).

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discovered evidence may be used for the purpose of rebutting the findings.”21 Jacob

asserts that this statute allowed the State to present much of the same evidence at the 90­

day hearing as was provided at the 30-day hearing, prejudicing him because he could not

raise issues concerning his partner’s and neighbor’s credibility or challenge the allegedly

erroneous findings from the 30-day hearing without newly discovered evidence.

Jacob’s first contention, that he was not able to raise issues concerning his

partner’s or neighbor’s credibility, is without merit. Jacob could have raised issues about

those witnesses’ credibility at the 90-day hearing regardless of any finding made at the

30-day hearing.22 But when Jacob cross-examined both witnesses at the 90-day hearing,

he made no attempt to suggest they were not credible.

Jacob’s second contention is also without merit. Jacob argues that because

he could not refute findings from the 30-day hearing without new evidence, legal and

factual errors occurring in that proceeding tainted any findings from the 90-day hearing.

But, as explained above, the 30-day order was not erroneously issued, and we find no

error in accepting the facts established at the 30-day hearing.

2. The jury instructions were correct.

Jury Instruction No. 17 reads:

On January 12, 2015, the court issued findings of fact

following hearings related to a petition for hospitalization.

These facts cannot be rebutted during this hearing, unless

[Jacob] brings forth new evidence. This means you must

accept those facts as true. The facts that were established

during each of those hearings were as follows:

21

AS 47.30.740(c).

22

See Davis v. Alaska, 415 U.S. 308, 316 (1974) (“The partiality of a witness

is subject to exploration at trial, and is ‘always relevant as discrediting the witness and

affecting the weight of his testimony.’ ” (quoting 3A J. WIGMORE, EVIDENCE § 940 at

775 (1970))).

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(1) [Jacob] was mentally ill, and as a result of that illness,

he posed a risk of harm to others.

(2) [Jacob] was advised of and refused voluntary

treatment.

Jacob contends that this instruction prejudiced him because it forced the jury to accept

the legal conclusions from the 30-day hearing, eliminating the State’s burden to prove

that Jacob was mentally ill and as a result posed a risk of danger to others at the time of

the 90-day hearing.23

Instruction No. 17 did not prejudice Jacob when read in concert with

Instruction No. 12.24 Instruction No. 17 informed the jurors that they must accept as true

that Jacob “was mentally ill, and as a result of that illness, he posed a risk of harm to

others” at the time of the 30-day hearing. (Emphasis added.) And Instruction No. 12

told the jury its task was to determine if Jacob “is mentally ill” and “as a result of his

mental illness he is likely to cause harm to himself or others.” (Emphases added.) This

clearly reflects AS 47.30.755’s requirement that a jury find Jacob mentally ill and posing

a risk of danger at the time of the 90-day hearing.25 There was no prejudicial error in the

jury instructions.

23

See Tracy C., 249 P.3d at 1092 (interpreting 30-day commitment statute to

require finding based on respondent’s mental health at time of the hearing and noting that

“[t]he superior court may not involuntarily commit a patient . . . if by the time of the

hearing the patient is no longer mentally ill . . . or likely to harm []self or others”).

24

“An error in jury instructions is grounds for reversal only if it caused

prejudice.” City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting

Thompson v. Cooper, 290 P.3d 393, 398-99 (Alaska 2012)).

25

This statute allows the superior court to commit a respondent for 90 days

if the “jury finds by clear and convincing evidence that the respondent is mentally ill and

as a result is likely to cause harm to self or others.” AS 47.30.755(a).

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3. The 90-day order was supported by the evidence.

Jacob argues that the superior court should have disregarded the jury’s

finding that he was mentally ill and as a result was likely to cause harm to others because

no evidence was presented at the 90-day hearing that Jacob was likely to cause harm to

others. The parties disagree whether Jacob can challenge the court’s decision directly

or must challenge the jury’s verdict, because AS 47.30.755(a) states that “the court may

commit the respondent” if the jury finds that the respondent is mentally ill and is likely

to cause harm to others. Our task in reviewing the 90-day order would change

depending on whether we review the jury’s verdict or the court’s fact findings: We must

affirm a jury’s fact findings unless no evidence supports them,26 but we review the

court’s fact findings to determine if they are clearly erroneous.27 Because Jacob’s

argument is unavailing under either standard of review, we do not decide whether the

court could have appropriately disregarded the jury’s verdict in this case.

Jacob contends that the superior court “relied solely” on his refusal to take

medication when it entered the 90-day commitment order following the jury’s verdict.

He asserts that after the initial medication order expired he was voluntarily compliant

with his medication and that because of his compliance the court should have found he

“did not meet the standard for commitment regardless of the jury’s determination

otherwise.” But contrary to Jacob’s assertion the court found, and our review of the

record supports, that Jacob still posed a risk of harm to himself or others.

26

Nautilus Marine Enters., Inc. v. Valdez Fisheries Dev. Ass’n, 943 P.2d

1201, 1205 n.8 (Alaska 1997) (“A jury’s verdict will be overturned if there is no

evidence supporting the verdict.” (quoting Municipality of Anchorage v. Baugh Constr.

& Eng’g Co., 722 P.2d 919, 927 (Alaska 1986))).

27

Dale H. v. State, Dep’t of Health & Soc. Servs., 235 P.3d 203, 209 (Alaska

2010).

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There is strong evidence in the record that at the 90-day hearing Jacob still

suffered from delusional disorder at the same intensity as during his 30-day commitment

hearing. Mannen testified that he had reviewed the treatment team’s records the day

before the hearing began and that he evaluated Jacob after the hearing’s first day.

Mannen indicated that Jacob did not understand his diagnosis, had been on medication

for only ten days, had not yet benefitted from the medication, and his delusions remained

active. In response to the question “today, do you believe that [Jacob] poses a risk of

harm to himself or other people,” Mannen responded “I do, yes.” Mannen explained his

opinion was based on Jacob’s lack of progress in softening his delusions. This evidence

supports the jury’s verdict and the court’s issuance of the 90-day commitment order. It

was not error to issue the 90-day commitment order.

C. No Less Restrictive Alternative To Commitment

1. The superior court properly considered the question.

Courts must consider whether a less restrictive alternative would provide

adequate treatment when contemplating involuntary commitment.28 Alaska Statute

47.30.730(a)(2) requires a 30-day involuntary commitment petition to “allege that the

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

alternatives available that would adequately protect the respondent or others.” This

28

AS 47.30.915(11); In re Joan K., 273 P.3d 594, 598, 601-02 (Alaska 2012)

(finding no less restrictive alternative where surveillance by family would not provide

sufficient support and patient’s behavior lacked stability in part because she denied she

was mentally ill). “Least restrictive alternative” means that the treatment facilities and

conditions “are no more harsh, hazardous, or intrusive than necessary to achieve the

treatment objectives of the patient” and “involve no restrictions on physical movement

nor supervised residence or inpatient care except as reasonably necessary for the

administration of treatment or the protection of the patient or others from physical

injury.” Joan K., 273 P.3d at 599 (quoting AS 47.30.915(11)).

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requirement carries over to a 90-day petition.29 And AS 47.30.735(d) states that “[i]f the

court finds that there is a viable less restrictive alternative available and that the

respondent has been advised of and refused voluntary treatment through the alternative,

the court may order the less restrictive alternative treatment.” This requirement also

carries over to a 90-day commitment.30

Alaska Statute 47.30.745(c) gives a respondent the right to a jury trial when

contesting a 90-day commitment petition. Jacob asserts that his right to a jury trial

should extend at minimum to the factual findings underpinning whether a less restrictive

alternative exists.

An examination of AS 47.30.755 leads us to conclude that the less

restrictive alternative decision, including any necessary fact findings underpinning that

decision, rests with the court and not the jury.31 Alaska Statute 47.30.755(a) specifically

permits either “the court or jury” to find that a respondent is mentally ill and as a result

29

AS 47.30.740(a).

30

AS 47.30.755(b).

31

AS 47.30.755 provides:

(a) After the hearing and within the time limit specified

in AS 47.30.745, the court may commit the respondent to a

treatment facility for no more than 90 days if the court or jury

finds by clear and convincing evidence that the respondent is

mentally ill and as a result is likely to cause harm to self or

others, or is gravely disabled.

(b) If the court finds that there is a less restrictive

alternative available and that the respondent has been advised

of and refused voluntary treatment through the alternative,

the court may order the less restrictive alternative treatment

after acceptance by the program of the respondent for a

period not to exceed 90 days.

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is likely to cause harm to others.32 In contrast AS 47.30.755(b) allows only “the court”

to find that there is a less restrictive alternative.33 The language difference between the

provision’s two parts shows that the statute clearly was intended to allow only the court

to make this decision. And this makes sense in balancing the roles of the jury and the

court — the less restrictive alternative determination requires balancing an individual’s

liberty interest, the State’s interest in treating the individual, and available treatment

options and facilities.34 This is a task uniquely suited to the court. It was not error for

the superior court to make the less restrictive alternative determination, including the

factual findings underpinning that decision.

2. The record supports the superior court’s less restrictive

alternative decision.

The superior court provided limited analysis in its written order concerning

the existence of a less restrictive alternative: “[Jacob] has active delusions. He does not

believe he has a mental illness and is unlikely to take necessary medication. There are

no less restrictive alternatives for him right now. . . . No less restrictive facility would

adequately protect [Jacob] and the public, and no less restrictive facility has accepted

[Jacob].”

However the court’s oral findings during the 90-day hearing were more in-

depth. The jury found that Jacob’s continuing mental illness meant he posed a risk of

danger to others, and the court noted that “[m]oving a couple blocks away [to his

brother’s house] probably is not going to protect [the neighbor] at this point” as Jacob’s

32

AS 47.30.755(a).

33

AS 47.30.755(b).

34

See Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 185 (Alaska 2009)

(explaining existence of less restrictive alternative is mixed question of law and fact).

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delusions about her had not yet softened. And the court explained that Jacob would

remain “a danger to the public until” there were sufficient assurances that he would take

his medication. The court had “no reason at [that] point to think that” Jacob would take

his medication as part of outpatient treatment.

Jacob again asks us to weigh conflicting evidence to determine that the

court’s decision was incorrect, but we “grant especially great deference” to the trial court

in these situations and “will reverse only if a review of the record leaves us with a

definite and firm conviction that a mistake has been made.”35 Jacob points to Mannen’s

testimony that Jacob could be safely discharged under certain conditions and Jacob’s

brother’s testimony that he would house and supervise Jacob as suggesting that a less

restrictive alternative to treatment at API existed. Jacob argues that the State did not

adequately explore the possibility of Jacob living with his brother because there “was no

testimony from API that anyone had spoken with Jacob’s brother about Jacob living with

him to see if he could allay any concerns about the proposed living arrangement.” But

Mannen explained that changing Jacob’s residence might “actually worsen his thinking”

and that he might “work harder” to act on his delusions. Mannen also stated that family

supervision was not an acceptable alternative to treatment at API until Jacob showed a

more robust response to his medication and his delusions softened. Even though Jacob

testified that he would be willing to take medication and participate in outpatient

treatment if released from API, the superior court found Jacob’s testimony was not

credible, a finding we will not question on appeal.36

35

In re Tracy C., 249 P.3d 1085, 1089 (Alaska 2011) (quoting Bigley, 208

P.3d at 178) (citing Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska

2007)).

36

See Hannah B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s

(continued...)

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Because the record supports the superior court’s determination — by clear

and convincing evidence37 — that no less restrictive alternative to commitment at API

existed, that determination is not clearly erroneous.

D. The Medication Order

1. Jacob’s challenge to the medication order falls within the public

interest exception to the mootness doctrine.

The superior court’s order authorizing Jacob’s “involuntary commitment

does not authorize the [S]tate to treat [him] with psychotropic drugs.”38 “To treat an

unwilling and involuntarily committed mental patient with psychotropic medication, the

[S]tate must . . fil[e] a second petition, asking the court to approve the treatment it

proposes to give.”39 In that petition the State must prove — by clear and convincing

evidence — “that the committed patient is currently unable to give or withhold informed

consent regarding an appropriate course of treatment” and that the patient never refused

such treatment while previously competent.40 If the court determines that the patient is

not competent to make the decision, the court must next determine whether the

36

(...continued)

Servs., 289 P.3d 924, 930 (Alaska 2012) (“We defer to a superior court’s credibility

determinations, particularly when they are based on oral testimony.” (citing Pravat P.

v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 249 P.3d 264, 274

(Alaska 2011))).

37

In re Mark V., 375 P.3d 51, 58 (Alaska 2016) (“[A] petitioner must prove,

by clear and convincing evidence, the petition’s allegation that there are no less

restrictive alternatives.”).

38

Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 242 (Alaska 2006).

39

Id. at 242-43.

40

Id. at 243 (first citing AS 47.30.836(3); then citing AS 47.30.839(g)).

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medication is in the patient’s best interests.41 Jacob challenges both the superior court’s

determination that he was not competent and its finding that medication was in his best

interests.

We note that challenges to involuntary medication orders generally are

moot; due to the time required for appeal and the orders’ temporary duration, even a

favorable result on appeal will rarely stop involuntary medication.42 “[A] claim is moot

if it is no longer a present, live controversy, and the party bringing the action would not

be entitled to relief, even if it prevails.”43 “We will, however, consider the merits of a

claim that would otherwise be moot if the claim falls within the public interest exception

to the mootness doctrine.”44 One circumstance that can bring a medication order

challenge into this exception is when the challenge involves interpreting the underlying

statutory scheme.45 Jacob asserts that this case presents a question involving

interpretation of AS 47.30.837(d), regarding when a patient is competent to make mental

health treatment decisions, and we agree. We therefore consider Jacob’s arguments.

41

See id. at 250, 252, 254.

42

See, e.g., In re Gabriel C., 324 P.3d 835, 839 (Alaska 2014) (“Gabriel’s

appeal of the involuntary medication order is moot because the record indicates that the

order lapsed when his commitment ended.”).

43

Id. (quoting In re Tracy C., 249 P.3d 1085, 1090 (Alaska 2011)).

44

Tracy C., 249 P.3d at 1090 (citing Wetherhorn, 156 P.3d at 380).

45

See id. at 1090-91 (“[Q]uestions ‘regarding interpretation of the underlying

statutory scheme in commitment and medication proceedings’ . . . fall under the public

interest exception . . . .” (alterations in original omitted) (quoting Bigley v. Alaska

Psychiatric Inst., 208 P.3d 168, 179 (2009))).

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2. A single factor in AS 47.30.837(d)(1) can be dispositive when

determining a patient’s competency.

Alaska Statute 47.30.837 permits a treatment facility to administer

psychotropic drugs to a person involuntarily committed if, among other requirements,

“the facility has reason to believe that the patient is not competent to make . . . mental

health treatment decisions and the facility . . . follow[s] the procedures of

AS 47.30.839.”46 “Competent” in this context means the patient:

(A) has the capacity to assimilate relevant facts and to

appreciate and understand the patient’s situation with regard

to those facts . . . ;

(B) appreciates that the patient has a mental disorder

or impairment, if the evidence so indicates; denial of a

significantly disabling disorder or impairment, when faced

with substantial evidence of its existence, constitutes

evidence that the patient lacks the capability to make mental

health treatment decisions;

(C) has the capacity to participate in treatment

decisions by means of a rational thought process; and

(D) is able to articulate reasonable objections to using

the offered medication.[47]

Jacob argues that the superior court found him incompetent based only on

his inability to meet AS 47.30.837(d)(1)(B), an error because the statute requires a court

to weigh all the elements to determine competence. According to Jacob we previously

interpreted this statute to prevent a court from resting a competency decision on a single

46

AS 47.30.839 (setting out procedures for obtaining court order for forcibly

administering psychotropic medication in both emergency and non-emergency

situations).

47

AS 47.30.837(d)(1).

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element. In Myers v. Alaska Psychiatric Institute we briefly discussed AS 47.30.837,

stating that “[u]nder this provision, a patient’s inability to appreciate the presence of a

mental disorder is a relevant consideration [for competency] but is not dispositive.”48

But AS 47.30.837’s function and interpretation were not at issue in Myers.49 As the State

correctly asserts, this means that our brief mention of the statute in Myers is properly

considered dicta50 and does not control our interpretation of the statute here.

Alaska Statute 47.30.837(d)(1) does not require a weighing of multiple

factors — this statute defines when a patient is “competent” in four parts joined by the

word “and.” Because the four parts are joined in the conjunctive, a plain reading of the

statute suggests that the absence of any one element requires a finding that the patient is

not competent. Section (B)’s language further supports this reading of the statute:

“[D]enial of a significantly disabling disorder or impairment, when faced with substantial

evidence of its existence, constitutes evidence that the patient lacks the capability to

make mental health treatment decisions.”51 This language contemplates that a patient’s

denial of a significantly disabling mental illness, even when faced with substantial

48

138 P.3d 238, 243 (Alaska 2006) (citing AS 47.30.837(d)(1)(B)).

49

Id. at 254 (holding that the Alaska Constitution prohibits a court from

authorizing psychotropic drug treatment of an incompetent patient unless the court finds

“that the proposed treatment is in the patient’s best interests and that no less intrusive

alternative is available”).

50

See, e.g., Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122,

1135 (Alaska 2016) (“Suggesting that we somehow answered a question that was not

actually asked in [the prior case] is both incorrect and contrary to precedent. In every

case we decide what we decide, and nothing more.”); AAA Valley Gravel, Inc. v. Totaro,

219 P.3d 153, 167 (Alaska 2009) (agreeing with argument that a statement by trial court

was dicta, explaining it was not the litigation’s focus and “not binding”).

51

AS 47.30.837(d)(1)(B).

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evidence of that illness, will inform the court’s decision on the overarching question of

competence to make mental health treatment decisions. This suggests that a court could

find a patient lacks competence to make medical treatment decisions based on

AS 47.30.837(d)(1)(B) alone.

However “[w]e do not mechanically apply the plain meaning rule but use

a sliding scale approach to statutory interpretation, in which ‘[t]he plainer the statutory

language is, the more convincing the evidence of contrary legislative purpose or intent

must be.’ ”52 Jacob presents no legislative history supporting his reading of the statute,

and we found none. Because the statute’s application to this case is plain and evidence

contradicting a plain reading of the statute is lacking, we conclude that a superior court

may find a patient incompetent to make medical treatment decisions based on the lack

of a single element in AS 47.30.837(d)(1).

3. The superior court’s finding that Jacob was not competent to

participate in medical decisions is not clearly erroneous.

We now turn to the question whether the superior court complied with the

medication order statutes in determining — by clear and convincing evidence53 — that

Jacob lacked competence to participate in medical decisions.

Jacob argues that the superior court found he lacked competence purely

because he was not recognizing his mental illness, and that in doing so the court

improperly disregarded evidence that he was in fact competent. At the 30-day hearing

Dr. Mack testified to the effect of Jacob’s inability to recognize his mental illness on his

52

Huit v. Ashwater Burns, Inc., 372 P.3d 904, 912 (Alaska 2016) (second

alteration in original) (quoting Gov’t Emps. Ins. Co. v. Graham-Gonzalez, 107 P.3d 279,

284 (Alaska 2005)).

53

AS 47.30.839(g); Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,

382 (Alaska 2007).

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ability to participate in medical treatment decisions. Jacob was not able to rationally

discuss treatment goals or establish a long-term maintenance plan because all discussion

attempts ended in him flatly denying his disorder. At the 90-day hearing the court-

appointed visitor similarly stated that Jacob’s inability to recognize his mental illness

prevented him from having a rational discussion about treatment. This testimony

supports the court’s determination that Jacob was not competent because he did not meet

AS 47.30.837(d)(1)(B)’s requirement that he be able to recognize his mental illness to

the extent required to make mental health treatment decisions. Accordingly, the superior

court’s finding is not clearly erroneous.

4. The superior court’s finding that medication was in Jacob’s best

interests is not clearly erroneous.

Jacob argues that the superior court’s finding that the 30-day medication

order was in his best interests was clearly erroneous.54 Jacob also argues that the court’s

findings about the Myers best interests factors were not sufficiently detailed in either the

30- or 90-day medication order. Those factors are:

(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 associated with the treatment.[55]

54

Myers, 138 P.3d at 254 (“[A] court may not permit a treatment facility to

administer psychotropic drugs unless the court . . . expressly finds by clear and

convincing evidence that the proposed treatment is in the patient’s best interests and that

no less intrusive alternative is available.”).

55

Id. at 252 (citing Price v. Shepard, 239 N.W.2d 905, 913 (Minn. 1976))

(directing courts to “balance [a] patient’s need for treatment against the intrusivenes of

the prescribed treatment” (quoting Price, 239 N.W.2d at 913)).

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Dr. Mack’s testimony at the 30-day hearing about the proposed medication

supports a conclusion under the Myers factors that the treatment was in Jacob’s best

interests: Jacob previously showed great improvement while taking the medication over

a short time period; the risk of adverse side effects was low; and the medication was a

non-experimental, accepted treatment for delusional disorder. The court’s finding that

the medication was in Jacob’s best interests is not clearly erroneous.

We have previously noted the need for courts to make detailed findings

concerning the Myers best interests factors or to incorporate the magistrate judge’s

findings when deciding involuntary medication orders.56 The superior court considered

Jacob’s objections to the magistrate judge’s recommendation that the 30-day medication

order be granted. In response the superior court adopted the magistrate judge’s

reasoning that Dr. Mack’s testimony supported the best interests finding. As noted

above this testimony supports the finding that medication was in Jacob’s best interests

under the Myers factors.

The superior court’s best interests determination for the 90-day medication

order was similarly sparse, with the court pointing to Mannen’s testimony as support.

The medication requested in the 90-day medication petition was the same medication

given under the 30-day medication order. And, similarly to Dr. Mack’s testimony at the

30-day medication hearing, Mannen’s testimony supported a finding that the medication

was in Jacob’s best interests. Accordingly, the superior court’s best interests finding

underpinning the 90-day medication order is not clearly erroneous.

56

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

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Although we affirm the superior court’s medication decisions, we again

emphasize the need for detailed findings when making best-interests decisions.57

V. CONCLUSION

We AFFIRM the superior court’s commitment and medication orders.

57

See id.

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