In Re Necessity for the Hospitalization of Reid K. , 357 P.3d 776 ( 2015 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Necessity )
for the Hospitalization of ) Supreme Court No. S-15328
)
REID K. ) Superior Court No. 4FA-13-00446 PR
)
) OPINION
)
) No. 7051 – September 25, 2015
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: Rachel Cella, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for Appellant
Reid K. Janell M. Hafner, Assistant Attorney General, and
Michael C. Geraghty, Attorney General, Juneau, for Appellee
State of Alaska.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
In August 2013 the superior court entered a 30-day involuntary civil
commitment order for Reid K.1 After holding a contested evidentiary hearing, the
superior court found that Reid was likely to harm others and that no less restrictive
1
Pseudonyms have been used to protect the privacy of the parties.
alternative existed to prevent potential harm. Reid appeals that 30-day commitment.
Shortly after Reid’s 30-day commitment, Reid’s doctors petitioned for a 90-day
commitment. At the trial on the requested 90-day commitment, Reid stipulated that he
was mentally ill and, as a result, was likely to cause harm to himself or others. Reid’s
30-day commitment order thus does not have collateral consequences in light of his
subsequent 90-day commitment based on his stipulation. Moreover the public interest
exception to the mootness doctrine does not apply. Reid’s appeal is therefore dismissed
as moot.
II. FACTS AND PROCEEDINGS
Reid K., age 26, was diagnosed with paranoid schizophrenia at age 16. He
experiences delusions and severe command auditory hallucinations in the form of seven
different voices that often instruct him to harm and kill other people, including members
of his family and his home village. Reid has been prescribed antipsychotic medication
since age 16 to help control his hallucinations and manage his illness, but he has
repeatedly stopped taking his medications as prescribed. When Reid stops taking his
prescribed medications or smokes large quantities of marijuana, which he does regularly,
the voices increase in intensity and his hallucinations get worse.
Reid has previously acted on his hallucinations by taking steps toward
homicidal acts. In 2012, in response to voices in his head, Reid attempted to kill his
brother with a sword. Reid was hospitalized in November 2012 and again prescribed
psychiatric medication, though it is unclear whether that hospitalization required an
involuntary commitment. Following Reid’s discharge from the hospital, Reid met
telephonically with his outpatient psychiatrist, Dr. Joshua Sonkiss, who was responsible
for overseeing Reid’s medication regimen.
Reid stopped taking his medication soon after his release from the hospital
in 2012. He testified that he stopped taking his medication because he wanted to see
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“how far [he] would go before anything could happen.” Reid missed between ten and
twenty percent of his outpatient appointments with Dr. Sonkiss and did not disclose to
Dr. Sonkiss that he had stopped taking his medication as prescribed. Reid heard voices
telling him to kill people for up to seven of the eight months after being off his
medications.
Reid’s treatment plan required that he abstain from alcohol and marijuana
because his doctors believed those substances would exacerbate Reid’s disorder and
make his psychosis worse. But Reid regularly used marijuana as a “stress reliever.” At
one point Reid told Dr. Sonkiss that he had smoked marijuana 22 out of the past 30 days
in addition to using “lots of other substances.”
By August 2013 Reid’s command auditory hallucinations had intensified
and were telling him to carry out a mass murder, beginning with his family and
continuing to each of the 400 residents of his village. In response to these
hallucinations, Reid obtained a 7-millimeter firearm that he planned to use to kill
residents at an upcoming village gathering. But when Reid went to buy ammunition, he
discovered that the store did not have the correct type of bullets in stock. A few days
later, Reid began having what he characterized as momentary “conscience,” and he
reported his homicidal plans to Dr. Sonkiss, admitting that his symptoms had gotten “out
of control.”
On August 16, 2013, Reid was voluntarily admitted for treatment at
Fairbanks Memorial Hospital. After his first week of hospitalization, Reid thought he
no longer needed inpatient treatment because he had come to realize that the voices were
telling him to do a “bad thing” and that his family was prepared to help him. His
inpatient treating psychiatrist, Dr. Monique Dase, filed a petition for involuntary
commitment for evaluation on August 26, 2013, and the following day obtained a court
order committing Reid to the hospital for evaluation.
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Two days later, on August 28, 2013, Dr. Dase filed a petition for a 30-day
commitment.2 The petition described Reid’s “plan to kill people in his village,” his
history of medication noncompliance, and his substance abuse. The petition alleged that
Reid was “likely to cause harm” to others and that “[t]he evaluation staff has considered,
but has not found, any less restrictive alternatives available that would adequately protect
[Reid] or others.” The superior court held a contested hearing on the 30-day
commitment petition the next day. Dr. Dase and Dr. Sonkiss testified in support of the
petition, and Reid, represented by counsel, testified on his own behalf.
Dr. Dase testified that she was Reid’s treating psychiatrist at Fairbanks
Memorial Hospital and that she had met with Reid most days during his hospitalization.
During Reid’s hospitalization, Dr. Dase completed a psychiatric evaluation and
confirmed Reid’s earlier diagnosis of schizophrenia based on his command auditory
hallucinations, which “provide commentary or tell [Reid] to do things to harm himself
or others.” She testified that Reid told her he heard multiple voices in his head that had
“become really strong, and [would] tell him to hurt other people” when he did not take
his medication as prescribed. She also testified that Reid had “been diagnosed with
cannabis dependence and ha[d] a history of alcohol abuse,” and that Reid had told her
that smoking “too much pot,” drinking alcohol, and not sleeping made his hallucinations
worse. Dr. Dase cited studies showing a connection between substance abuse and an
increased risk of violence in schizophrenics with violent tendencies.
Dr. Dase warned the court that Reid did not seem to understand that his
condition was chronic and that he posed a significant risk to others if he did not follow
through with every part of his treatment, including medication compliance,
2
On August 28, 2013, Dr. Dase also filed a petition to administer
psychotropic medication, though she withdrew the petition the next day.
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communicating with treatment providers, and abstaining from drugs and alcohol. Before
the hearing Dr. Dase had prescribed a weekly injectable form of antipsychotic
medication, but she cautioned that the injection would not be fully effective for another
two weeks and that during that time Reid would need to take the drug in a daily oral
form. She testified that if Reid was discharged, he would return to a stressful home
environment where he would be exposed to alcohol and other substances and would
likely stop taking his medication, which would cause a relapse or a “worse situation.”
Dr. Dase testified that Reid’s home environment was a potential symptom trigger
because some of Reid’s family members had historically been unsupportive of his
treatment and medication needs. She noted that Reid had learned to mask his symptoms
from his family, who she said were unaware of the extent of his recent planned attack.
Dr. Dase testified that, in her opinion, there was no less restrictive alternative to
hospitalization that could meet Reid’s needs and keep the community safe.
Dr. Sonkiss, Reid’s outpatient psychiatrist and Dr. Dase’s supervisor, also
testified at Reid’s 30-day commitment hearing. He confirmed Reid’s schizophrenia
diagnosis and testified in detail about Reid’s hallucinations and delusions. Dr. Sonkiss
testified that the only reason Reid did not carry out the planned village killings was
because Reid did not have the bullets. Dr. Sonkiss agreed with Dr. Dase’s conclusion
that substance abuse negatively impacted Reid’s condition and that Reid posed a danger
to others due to his auditory hallucinations. Dr. Sonkiss testified that “scientific research
shows very clearly that smoking marijuana . . . for people who already have a psychotic
disorder, it exacerbates it . . . [and] in [Reid’s] case there’s some research that indicates
marijuana increases violence risk by about a factor of four.”
Dr. Sonkiss also testified regarding Reid’s history of medication
noncompliance and warned that Reid “isn’t honest about his medication use when he’s
an outpatient.” In Dr. Sonkiss’s opinion, Reid’s previous failure to follow his medication
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regimen necessitated continued hospitalization, particularly since the injectable
antipsychotic had yet to take effect. Dr. Sonkiss testified that outpatient care was not yet
appropriate since Reid did not have a treatment plan and services in place to provide
Reid with adequate monitoring and to ensure community safety in light of what
Dr. Sonkiss characterized as “a very unusual and extremely dangerous situation.”
Dr. Sonkiss testified that, in his opinion, Reid posed a substantial risk of harm to himself
and others and that his mental illness was “very, very likely [to] drive him to . . . commit
a tragic act.”
Reid was the final witness to testify. Reid did not dispute that he is
mentally ill. He confirmed that he hears voices in his head that command him to kill
people, discussed his plans to kill members of his village, and acknowledged his
previous decision to stop taking psychiatric medications shortly after his release from the
hospital eight months earlier. Reid conceded that he needs to be on medication because
“[i]f not, something really bad can happen.” He denied that his marijuana use was a
problem and instead characterized it as a coping skill, testifying that he needed to use
marijuana when he encountered difficult times with depression and family problems.
Reid testified that he no longer needed to be hospitalized and asked to be discharged to
live with his grandmother, where, he asserted, his sister would help distribute his
medication so that “someone will know that I’m taking [it].”
At the conclusion of the hearing, the superior court found that there was
clear and convincing evidence showing Reid was mentally ill and that, as a result of his
mental illness, he was likely to cause harm to others. The superior court based its latter
finding on Reid’s recent plans to kill members of his village; his history of medication
noncompliance; his marijuana use and “credible testimony from the experts . . . that . . .
marijuana use exacerbates his schizophrenic symptoms”; and Reid’s lack of insight into
his illness as demonstrated by his continued drug use because it “exacerbates the voices
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that he hears when he’s off his medication, as well as when he’s on his medication.” The
superior court also found that a 30-day commitment was the least restrictive alternative
to prevent potential harm. The court based its least-restrictive-alternative finding on the
inadequacy of Reid’s proposed outpatient plan, reasoning that Reid’s sister did not have
the ability to ensure that Reid would follow the medication regimen necessary to reduce
his likelihood of harming others; that Reid’s family could not adequately supervise Reid
and know when he might pose a risk to others because Reid had learned to mask his
symptoms; and that Reid’s village did not have a sufficient law enforcement presence to
protect the community should Reid attempt to harm others. On August 29, 2013, the
court signed an order for a 30-day commitment.
One month later, after the initial 30-day commitment expired, Dr. Sonkiss
filed a petition for a 90-day commitment, alleging that Reid was still likely to cause harm
to himself or others. The matter proceeded to a jury trial but the parties ultimately
stipulated that Reid “is mentally ill” and as a result, “he is likely to cause harm to himself
or others.”3 The superior court signed an order for a 90-day commitment in
October 2013.
Reid now appeals the superior court’s 30-day commitment order in
August 2013 and asks us to reverse and vacate the order.
3
We may take judicial notice of Reid’s stipulation on the record and the
accompanying 90-day commitment order, both of which were entered subsequent to the
superior court’s 30-day commitment order. See Alaska R. Evid. 201; Gilbert M. v. State,
139 P.3d 581, 583 n.3 (Alaska 2006) (taking judicial notice of a party’s conviction and
sentence, which were not part of trial court record, under Alaska Evidence Rules 201 and
203).
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III. STANDARD OF REVIEW
Whether an issue is moot is a “matter of judicial policy and . . . a question
of law” to which we apply our independent judgment.4
IV. DISCUSSION
A. Reid’s Appellate Claims Are Barred On Procedural Grounds Because
His Case Is Moot And Not Subject To Any Mootness Exception.
“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. Appeals of
commitment orders that are based on assertions of insufficient evidence are moot if the
commitment period has passed, subject to two exceptions: the public interest exception
and the collateral consequences exception.”5 Reid argues that both mootness exceptions
apply here. We conclude that Reid’s arguments are moot because the period of
commitment under the 30-day order has expired and neither mootness exception applies,6
4
In re Joan K., 273 P.3d 594, 595-96 (Alaska 2012).
5
In re Mark V., 324 P.3d 840, 843 (Alaska 2014) (quoting Wetherhorn v.
Alaska Psychiatric Inst., 156 P.3d 371, 380 (Alaska 2007)) (internal quotation marks
omitted).
6
Reid requests that if we find his appeal is not subject to either mootness
exception that we remand “for consideration of whether Reid received ineffective
assistance of counsel and stay his appeal pending resolution of that issue.” Reid
questions “whether [he] received effective assistance of counsel when entering the
90-day stipulation.” “When we review the question whether a litigant has raised
successfully an ineffective assistance challenge, we apply [a] two-pronged test . . . .
Under the first prong, the litigant must show that her attorney’s performance was below
a level that any reasonably competent attorney would provide, bearing in mind that
reasonable tactical decisions are virtually immune from subsequent challenge even if, in
hindsight, better approaches could have been taken. Under the second prong, the litigant
must demonstrate that counsel’s improved performance would have affected the outcome
of the case.” Chloe W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
(continued...)
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and thus affirm the superior court’s order.
1. The public interest exception to mootness does not apply.
We will consider a question that is otherwise moot if the question “falls
within the public interest exception to the mootness doctrine.”7 Three factors govern
whether the public interest exception applies: “(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 circumvented, and (3) whether the issues presented are so
important to the public interest as to justify overriding the mootness doctrine.”8 Based
on his substantive challenges, Reid argues that all three factors of the public interest
exception to mootness are met here.
First, Reid argues that the disputed issues are likely to recur because he
challenges the methods his doctors used to form their professional opinions and those
methods are not unique to the facts of this case. He also asserts that “such questions will
recur and will otherwise evade appellate review due to the quick expiration of
commitment orders.” Finally, Reid notes that we have previously applied the exception
to commitment appeals that raise questions of statutory interpretation and are thus
6
(...continued)
Servs., 336 P.3d 1258, 1265 (Alaska 2014) (quoting Chloe O. v. State, Dep’t of Health
& Soc. Servs., Office of Children’s Servs., 309 P.3d 850, 858-59 (Alaska 2013)) (internal
quotation marks and citation omitted). Here, Reid fails to explain how his attorney’s
performance in entering the stipulation fell below the level that a reasonably competent
attorney would provide and thus has not satisfied the first prong of establishing
ineffective assistance of counsel. We therefore decline his invitation to remand the case
rather than dismissing the appeal as moot.
7
Wetherhorn, 156 P.3d at 380.
8
Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535 (Alaska 2005)
(quoting Kodiak Seafood Processors Ass’n v. State, 900 P.2d 1191, 1196 (Alaska 1995)).
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important to the public interest.9 Reid argues that his appeal “raises important questions
concerning how the ‘harm to others’ and ‘least restrictive alternative’ provisions of the
commitment statutes should be interpreted,” and thus meets the third public interest
exception factor. The State counters that the public interest exception “does not apply
because unlike appeals raising matters of statutory interpretation, Reid’s appeal presents
a discrete challenge to the sufficiency of the evidence.”
Reid challenges the superior court’s finding that he was likely to cause
harm to others in the future. He argues that “[t]he trial court clearly erred in [finding]
that [he] was likely to harm others given the lack of reliability of clinical predictions; the
court’s improper reliance on medication noncompliance as a factor in the commitment
decision; and the speculative and attenuated connection between marijuana use and
violence.”
In particular, Reid challenges the sufficiency of the evidence based on the
alleged unreliability of the unstructured clinical risk assessments used by Dr. Dase and
Dr. Sonkiss to predict that Reid was likely to harm others, as well as their citation of
studies showing a link between marijuana use and increased risk of violence in
schizophrenics. Reid’s arguments turn on factual questions regarding the reliability of
clinical tests and marijuana studies, not questions of statutory interpretation, as he
suggests. Reid points to no statutory language to suggest that the legislature sought to
disallow this type of evidence. And the trial court is the most appropriate forum in which
to evaluate and weigh competing fact-based arguments regarding the reliability of
9
See Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 179, 183-84 (Alaska
2009); E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1107 (Alaska 2009).
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evidence showing that an individual is likely to harm others.10 Reid’s appeal is thus not
subject to the public interest exception.
2. The collateral consequences exception to mootness does not
apply.
In In re Joan K., we adopted the collateral consequences exception as a
second exception to mootness in the involuntary commitment context.11 This exception
“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.”12 We recognized that involuntary commitment may carry various
collateral consequences, including “social stigma, adverse employment restrictions,
application in future legal proceedings, and restrictions on the right to possess
firearms.”13
Joan K. held that collateral consequences can be presumed for “a person’s
first involuntary commitment order.”14 We reasoned that some number of prior
involuntary commitments beyond an individual’s first commitment “would likely
eliminate the possibility of additional collateral consequences, precluding the
[exception’s] application.”15 We suggested in In re Mark V. that there may be
10
See State v. Coon, 974 P.2d 386, 396 (Alaska 1999) (“Determining
reliability for judicial purposes is unavoidably the responsibility of trial courts . . . .”).
11
273 P.3d 594, 597-98 (Alaska 2012).
12
Id. at 597-98 (quoting Peter A. v. State, Dep’t of Health & Soc. Servs.,
Office of Children’s Servs., 146 P.3d 991, 994-95 (Alaska 2006)).
13
Id. at 597 (citations omitted).
14
Id. at 598.
15
Id.
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“incrementally significant collateral consequences” to commitments that occur after an
individual’s first commitment, but reasoned that appellants must show a “plausible
likelihood” of such additional collateral consequences.16
The State argues that Reid’s 90-day commitment renders his appeal moot
because “there is no longer any indication that the 30-day commitment order will cause
Reid to suffer any independent or readily cognizable added collateral consequences”
because any consequences “now presumably attach with equal force to Reid’s 90-day
commitment order.” Reid responds that there are “incrementally significant” and
discrete collateral consequences that attach to the 30-day order as opposed to the 90-day
order, based on a perceived distinction between the judicial determination made after the
contested 30-day hearing and the judicial determination based on Reid’s stipulation at
the 90-day hearing.
But any consequences arising from Reid’s 30-day commitment order are
subsumed within his subsequent 90-day commitment order, which were both adjudicated
orders. This conclusion may have been different if Reid had voluntarily committed
himself for the 90 days of treatment, but he did not: His 90-day commitment was the
product of a court process that was ultimately resolved by Reid stipulating to the findings
necessary for a court-ordered commitment. There is no meaningful distinction between
the collateral consequences arising from a trial court’s commitment order that is based
on the court’s factual findings after a contested hearing and the consequences arising
from a trial court’s commitment order that is based on facts stipulated by the parties.
Thus Reid’s 30-day commitment, which was the result of the trial court’s factual finding,
carries the same consequences as his 90-day commitment, where the trial court’s findings
were based on Reid’s factual stipulations. As a result, the collateral consequences
16
324 P.3d 840, 845 (Alaska 2014).
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exception does not apply to Reid’s appeal of the 30-day order, and his claims are thus
barred on mootness grounds.
B. Challenges To Expired Commitment Orders Are Generally Moot
Under Wetherhorn, And Thus It Is Best Practice For The State To
Move To Dismiss Such Challenges As Moot Before Proceeding To
Appellate Briefing.
This case centered on Reid’s appeal of a commitment order, which the State
first challenged as moot in its appellee’s brief. As a result, Reid did not have a chance
to try to demonstrate that his claims are not moot or that they fall within an exception to
the mootness doctrine until his reply brief. This is problematic because in order for the
collateral consequences exception to mootness to apply, appellants have the burden to
show that the commitment they are challenging is their first commitment, or that other
incrementally significant consequences flow from it.17
To avoid the procedural challenges that result when the State does not raise
mootness arguments until its appellee’s brief, we take this opportunity to clarify best
practices regarding appeals of commitment orders. In Wetherhorn v. Alaska Psychiatric
Institute we held that appeals of commitment orders based on insufficient evidence are
generally moot after the commitment period has passed.18 In many, if not most cases, the
court can determine whether there is a live controversy prior to briefing on the substance
17
See In re Dakota K., ___ P.3d ___, Op. No. 7041 at 8-10, 2015 WL
5061844, at *3-4 (Alaska Aug. 28, 2015). Though Dakota K. had not been decided
before Reid’s briefings and oral argument, our holding in Dakota K., setting forth
appellant’s burden to demonstrate that the commitment he is challenging is his first
commitment would not have affected the outcome of this case: The record shows that
Reid faced a 30-day commitment in August 2013 and a subsequent 90-day commitment
in October 2013, and thus it is now irrelevant whether his August 2013 commitment was
his first.
18
156 P.3d 371, 380 (Alaska 2007).
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of the appeal. It is thus the best practice for the State to move to dismiss appeals of
commitment orders as moot before briefing commences when no mootness exception is
readily apparent.19 Therefore, when the State first receives a notice of appeal of an
expired commitment order that does not otherwise present a live controversy, if it
believes that the claims are moot under Wetherhorn 20 it should move to dismiss the
appeal as moot prior to briefing. The person challenging the commitment then has the
burden to demonstrate whether a mootness exception exists before briefing underlying
substantive issues. We can then either determine whether there is a live controversy
prior to briefing on the substantive issues or deny the State’s motion without prejudice
to the parties’ ability to further develop and discuss mootness in their subsequent
briefing.
This procedure has the potential to save scarce public attorney and judicial
resources by avoiding merits-based briefing when appeals must ultimately be dismissed
on procedural mootness grounds. Moreover, it puts the appellant in the best position to
prove facts regarding whether the commitment is his first or whether any other mootness
exception applies, and it gives the State an opportunity to rebut those claims. Otherwise,
if the State waits until its appellee’s brief to raise mootness issues, it will be unable to
respond to any claims the appellant makes in its reply brief. We hope that setting out
19
Cf. Dakota K., Op. No. 7041 at 9-10, 2015 WL 5061844, at *4 (holding that
if a patient “files an appeal challenging the commitment order on sufficiency of evidence
grounds, the State can file a motion to dismiss based on mootness, and the respondent
would then have the burden of making some evidentiary showing either that this was the
first involuntary commitment or that there is some other factual basis for claiming
collateral consequences”).
20
This court can stay the normal briefing schedule as soon as a motion to
dismiss is filed.
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these best practices will allow all parties to address and focus on the multiple dimensions
of an appeal of a commitment order in a more efficient and complete manner.
V. CONCLUSION
Because Reid’s appeal is moot and not subject to the collateral
consequences or public interest exceptions to the mootness doctrine, the appeal is
DISMISSED AS MOOT.
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