Vu v. Second Jud. Dist. Ct. , 2016 NV 21 ( 2016 )

132 Nev., Advance Opinion 21
IN THE SUPREME COURT OF THE STATE OF NEVADA
PHONG T. VU, No. 65498
Petitioner,
vs.
THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
FILED
IN AND FOR THE COUNTY OF MAR 3 1 2016
WASHOE; AND THE HONORABLE
4i ° P i
K LINDEMAN
CLE RT
CHUCK WELLER, DISTRICT JUDGE,
Respondents, •
and
RICHARD A. GAMMICK, DISTRICT
ATTORNEY,
Real Party in Interest.
Original petition for a writ of mandamus challenging a district
court order granting a petition to have petitioner involuntarily admitted to
a mental health facility and directing transmission of the order to the
Central Repository for Nevada Records of Criminal History.
Petition denied.
Jeremy T. Bosler, Public Defender, and John Reese Petty and Kathleen M.
O'Leary, Chief Deputy Public Defenders, Washoe County,
for Petitioner.
Christopher J. Hicks, District Attorney, and Blaine E. Cartlidge, Deputy
District Attorney, Washoe County,
for Real Party in Interest.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, PARRAGUIRRE, C.J.:
Under NRS 433A.310(1)(b), a district court may issue an order
involuntarily admitting a person to a mental health facility if clear and
convincing evidence demonstrates that the person "has a mental illness
and, because of that illness, is likely to harm himself or herself or others if
allowed his or her liberty." The district court's order "must be
interlocutory and must not become final if, within 30 days after the
involuntary admission, the person is unconditionally released." Id. "If the
court issues an order involuntarily admitting a person. . . , the court
shall . . . cause . . . a record of such order to be transmitted to the Central
Repository for Nevada Records of Criminal History. . .." NRS
433A.310(5).
At issue in this original proceeding is whether NRS
433A.310(5) requires a district court to transmit an admission order at the
time it is entered or if, instead, the district court is prohibited from
transmitting the order until it becomes final under NRS 433A.310(1)(b)—
i.e., until 30 days have elapsed without the admitted person being
unconditionally released. We conclude that NRS 433A.310(5)'s plain
language requires a district court to transmit an admission order at the
time it is entered. Thus, although the petitioner in the underlying
proceedings was unconditionally released 12 days after the district court's
involuntary admission order, the district court was required under NRS
433A.310(5) to transmit the order to the Central Repository. And because
the district court reasonably determined that clear and convincing
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evidence justified petitioner's involuntary admission, we deny petitioner's
request for extraordinary writ relief
FACTS
The Sparks Police Department responded to a call from
petitioner Phong Vu's family in which the family requested assistance
with Vu. According to the police report, Vu had threatened to murder his
family, he was found with box cutters in his pocket, and he was muttering
about murder while the police were present. The responding officers
applied for the temporary emergency admission of Vu to a mental health
facility, which was approved by a physician. Three days later, a
psychiatrist filed a petition for court-ordered continued involuntary
admission of Vu to a mental health facility. Based on her examination of
Vu, the psychiatrist concluded that he had a mental illness and, as a
result of that mental illness, there was an imminent risk that Vu was
likely to harm himself or others if Vu were not involuntary admitted to a
mental health facility.
Vu was appointed a public defender, and a hearing on the
petition was held before the district court. At the hearing, the Washoe
County District Attorney's Office, representing the State, called as
witnesses a court-appointed psychiatrist and a court-appointed
psychologist, both of whom had interviewed Vu. The District Attorney
elicited testimony from the psychiatrist that Vu's family had called the
police due to their concerns that Vu posed a threat to their safety. The
psychiatrist also testified regarding an incident in which Vu, after having
been admitted to a facility on an emergency basis, had approached a
doctor in a manner that the doctor perceived as threatening, thereby
prompting the doctor to seek intervention from other employees. The
psychiatrist further testified that Vu was refusing to take an antipsychotic
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medication that had been prescribed to him. Summing up her opinion, the
psychiatrist explained that although Vu had not committed any act in
furtherance of a threat during the incidents with his family and the
doctor,
I believe that the perceptions that people have
that he is threatening to them, as well as his
inability to communicate in an organized fashion,
put him at risk for his own safety and well-being
that if somebody feels threatened by him, they
may respond in a way that affects his well-being
[because] they may feel as though they need to
defend themselves against the threat, and they
may not have a mental health tech or the Sparks
Police Department [to intervene].
The District Attorney elicited similar testimony from the court-appointed
psychologist, who summed up his opinion by stating, "I can't predict that
anybody would assault [Vu], but I feel there's certainly a risk of that."
At the end of the hearing, the district court made the following
findings:
[I] can glean that there exists a reasonable
probability that a serious bodily injury will occur if
he's discharged soon because of the fact that that's
how people have reacted to him in recent days.
There's nothing to suggest that his behavior has
been modified. . . . I find that within the last 30
days he's. . . had auditory hallucinations
and ... some of those are paranoid. He's carried
weapons. It may reasonably be inferred from
these acts that without the care, supervision and
continued assistance of others, that he will be
unable to satisfy his personal needs for self-
protection and safety. . . unless admitted to a
mental health facility and adequate treatment is
provided.
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Over defense counsel's objection, the district court directed the clerk of the
court to forward a record of the involuntary admission order to the Central
Repository for inclusion in the National Instant Criminal Background
Check System (NICS)."
Twelve days after thefl district court's admission order was
entered, Vu was unconditionally released from the mental health facility
based on the determination of a team of evaluators that Vu no longer
presented a clear and present danger of harm to himself or others. See
NRS 433A.390(2). Thereafter, Vu filed this petition for a writ of
mandamus, asking that this court direct the district court to recall from
the Central Repository the previously transmitted record of Vu's
involuntary admission. As a basis for the requested relief, Vu contends
that (1) NRS 433A.310(5) did not authorize transmission of the
involuntary admission order unless and until that order became final
under NRS 433A.310(1); and (2) regardless, the district court's underlying
determination that Vu should have been involuntarily admitted was not
supported by sufficient evidence.
DISCUSSION
"A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
'Records transmitted to the Central Repository are "included in each
appropriate database of [NICS]." NRS 179A.163(1). NICS, in turn, is a
"nationwide electronic database that licensed firearms dealers can check,
before selling a firearm to a person, to make sure that that person is not
prohibited under state or federal law from possessing a firearm." Hearing
on A.B. 46 Before the Assembly Judiciary Comm., 75th Leg. (Nev.,
February 20, 2009) (statement of Kerry Benson, Deputy Attorney General,
providing an overview of NICS and the legislation that is currently
codified in NRS 433A.310(5)).
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station or to control an arbitrary or capricious exercise of discretion." Ina
Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
P.3d 556, 558 (2008) (footnote omitted); see NRS 34.160. Whether to
consider a writ petition is within this court's discretion, and writ relief is
generally available only when "an adequate and speedy legal remedy" does
not otherwise exist. Ina Game Tech., 124 Nev. at 197-98, 179 P.3d at 558-
59; see NRS 34.170.
Here, we agree with Vu that he does not have an adequate
legal remedy other than to seek a writ of mandamus, as the district court's
involuntary admission order never became final under NRS
433A.310(1)(b), meaning that Vu has no right to appeal that order. See
Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678 P.2d
1152, 1153 (1984) (recognizing that this court has jurisdiction to consider
only those appeals that are authorized by a statute or court rule); see also
NRAP 3A(b) (listing appealable orders). Additionally, the issue of whether
NRS 433A.310(5) requires district courts to transmit involuntary
admission orders to the Central Repository before those orders become
final "presents an important issue of law that has relevance beyond the
parties to the underlying litigation." Las Vegas Sands Corp. v. Eighth
Judicial Dist. Court, 130 Nev., Adv. Op. 61, 331 P.3d 876, 878-79 (2014).
Accordingly, we elect to entertain the petition.
The district court was required under NRS 433A.310(5) to transmit the
involuntary admission order to the Central Repository even though the
order had not become final
Vu first contends that the district court improperly directed a
record of the involuntary admission order to be transmitted to the Central
Repository under NRS 433A.310(5), which instructs that "Rif the court
issues an order involuntarily admitting a person to a public or private
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mental health facility. . . , the court shall. . . cause . . . a record of such
order to be transmitted to the Central Repository." In support of his
argument, Vu relies on NRS 433A.310(1)(b)'s statement that an
involuntary admission "order of the court must be interlocutory and must
not become final if, within 30 days after the involuntary admission, the
person is unconditionally released pursuant to NRS 433A.390." According
to Vu, because NRS 433A.310's subsection 1(b) numerically precedes
subsection 5, subsection 1(b)'s distinction between an interlocutory and
final order applies to NRS 433A.310's remaining subsections, meaning
that subsection 5's reference to the "order" to be transmitted to the
Central Repository is necessarily restricted to only final orders.
We disagree with this proffered construction of the statute, as
it goes beyond the statute's plain meaning. See In re Candidacy of
Hansen, 118 Nev. 570, 572, 52 P.3d 938, 940 (2002) ("It is axiomatic that
when words of a statute are plain and unambiguous, they will be given
their plain meaning."). Subsection 5 plainly states that "Ulf the court
issues an order. . . , the court shall. . . cause. . . a record of such order to
be transmitted to the Central Repository." NRS 433A.310(5) (emphases
added). Nothing in this language contemplates that a district court must
wait 30 days to see whether its order becomes final under subsection 1(b)
before a record of the order can be transmitted to the Central Repository,
and we decline to read a requirement into subsection 5 that the
Legislature itself has not imposed. 2 See Barrett v. Eighth Judicial Dist.
2Our construction of subsection 5 is reinforced by the fact that the
Legislature enacted subsection 5 long after it enacted the final sentence of
subsection 1(b), see 2009 Nev. Stat., ch. 444, § 13, at 2491; 1989 Nev. Stat.,
ch. 748, § 19, at 1761, and did so without incorporating or otherwise
continued on next page...
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Court, 130 Nev., Adv. Op. 65, 331 P.3d 892, 895 (2014); Hansen, 118 Nev.
at 573, 52 P.3d at 940; Cirac v. Lander Cty., 95 Nev. 723, 729, 602 P.2d
1012, 1016 (1979).
To the extent that Vu suggests that this construction produces
an absurd result in light of his unconditional release after 12 days, we
disagree. The fact that Vu was unconditionally released after 12 days did
not imply that the district court's involuntary admission findings were
erroneous when that order was entered; Vu's release simply demonstrated
that he was "no longer considered to present a clear and present danger of
harm to himself. . . or others." NRS 433A.390(2)(a) (emphasis added).
More importantly, we are unwilling to consider a construction of
subsection 5 that might undermine the Legislature's attempt to comply
with federal law, as subsection 5 was enacted in response to congressional
legislation that incentivized states to cooperate in making NICS operate
more efficiently and comprehensively. See Hearing on A.B. 46 Before the
Assembly Judiciary Comm., 75th Leg. (Nev., February 20, 2009)
(statement of Kerry Benson, Deputy Attorney General, explaining that the
language of NRS 433A.310(5) was proposed in response to Congress's
NICS Improvement Amendments Act of 2007, which requires states to
adopt procedures to ensure that certain records are transmitted to NICS
as a requisite for states maintaining their eligibility for certain federal
funds); cf. Holiday Retirement Corp. v. State, Div. of Indus. Relations, 128
...continued
referencing subsection l's language, see Nev. Att'y for Injured Workers v.
Nev. Self-Insurers Ass'n, 126 Nev. 74, 84, 225 P.3d 1265, 1271 (2010) ("We
presume that the Legislature enacted the statute with full knowledge of
existing statutes relating to the same subject." (internal quotations
omitted)).
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Nev. 150, 154, 274 P.3d 759, 761 (2012) (noting that " [i] t is the prerogative
of the Legislature, not this court, to change or rewrite a statute").
Therefore, we conclude that NRS 433A.310(5)'s plain language required
the district court to transmit a record of Vu's involuntary admission order
to the Central Repository contemporaneously with the order's entry.
The district court reasonably determined that clear and convincing
evidence showed that Vu was likely to harm himself
Alternatively, Vu contends that the involuntary admission
order should not have been transmitted to the Central Repository because
the district court's determination that Vu should be involuntarily
admitted was not supported by sufficient evidence. As explained, NRS
433A.310(1)(b) permits a district court to order the involuntary admission
of a person to a mental health facility if "there is clear and convincing
evidence that the person with respect to whom the hearing was held has a
mental illness and, because of that illness, is likely to harm himself or
herself or others if allowed his or her liberty." Because an involuntary
admission order constitutes a deprivation of the admitted person's
constitutionally protected liberty interest, NRS 433A.310(1)(b)'s "clear and
convincing" evidentiary standard is meant to ensure that the district court
does not wrongfully deprive a person of that liberty interest. See
Addington v. Texas, 441 U.S. 418, 425-26 (1979). When a district court's
factual determinations must be supported by clear and convincing
evidence, "we review the record and decision with a degree of deference,
seeking only to determine whether the evidence adduced at the hearing
was sufficient to have convinced the deciding body that [the issue to be
determined] had been shown by clear and convincing evidence." Gilman v.
Nev. State Bd. of Veterinary Med. Exam'rs, 120 Nev. 263, 274-75, 89 P.3d
1000, 1008 (2004) (quotation omitted), disapproved on other grounds by
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Nassiri v. Chiropractic Physicians' Bd. , 130 Nev., Adv. Op. 27, 327 P.3d
487 (2014). In other words, despite the heightened evidentiary standard
of proof that the district court in this case was required to employ, our
review is limited to whether the district court reasonably could have
determined that clear and convincing evidence showed that Vu was likely
to harm himself. Gilman, 120 Nev. at 274-75, 89 P.3d at 1008; see In
Interest of R.N., 513 N.W.2d 370, 371 (N.D. 1994) (observing that although
the clear and convincing standard of proof in an involuntary commitment
proceeding requires a "more probing" standard of appellate review, that
review still entails a level of deference to the trial court's factual
determinations); see also In re Michael H., 856 N.W.2d 603, 612, 616 (Wis.
2014) (same); In re MH2009-002120, 237 P.3d 637, 642-44 (Ariz. Ct. App.
2010) (same)
Here, Vu and the District Attorney agree that Vu was
correctly diagnosed with a mental illness. They also agree that NRS
433A.310(1)(b)'s "likely to harm himself or herself or others" standard
must be established by showing that Vu fell within one of four definitions
set forth in NRS 433A.115(2) and (3). 3 They further agree that the
3 The interplay between NRS 433A.310(1)(b) and NRS 433A.115 is
not immediately apparent, particularly in light of NRS 433A.310(1)(b)'s
"likely to harm" standard and NRS 433A.115's "clear and present danger"
standard, discussed below. Nonetheless, it appears to have been the
Legislature's intention that a person must fall within one of the four
definitions set forth in NRS 433A.115(2) and (3) before that person may be
involuntarily admitted by court order under NRS 433A.310(1)(b). See
Hearing on S.B. 490 Before the Senate Comm. on Human Resources &
Facilities, 65th Leg. (Nev., June 9, 1989) (statement of Holli Elder,
Director of the Office of Protection and Advocacy, memorialized in exhibit
C, explaining that what would become NRS 433A.115(2) and (3)'s
definitions were "necessary to assure the consistent application and
continued on next page...
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definition that the district court found Vu to fall within was NRS
433A.115(2)(a), which provides that
[a] person presents a clear and present danger of
harm to himself or herself if, [(1)] within the
immediately preceding 30 days, the person has, as
a result of a mental illness . . [akted in a manner
from which it may reasonably be inferred that,
without the care, supervision or continued
assistance of others, the person will be unable to
satisfy his or her need for nourishment, personal
or medical care, shelter, self-protection or safety,
and [(2)] if there exists a reasonable probability
that the person's death, serious bodily injury or
physical debilitation will occur within the next
following 30 days unless he or she is admitted to a
mental health facility... . .
(Emphases added.) Vu and the District Attorney disagree, however, as to
whether sufficient evidence supported the district court's conclusion that
Vu fell within this definition.
Having considered the record generated at the involuntary
admission hearing, we agree with the District Attorney that the opinions
elicited from the court-appointed psychiatrist and psychologist reasonably
supported the district court's conclusion that Vu fell within MRS
433A.115(2)(a)'s definition. In particular, the uncontroverted evidence
demonstrated that in the 30 days preceding the hearing, Vu's family called
the police based on their concerns that he posed a physical threat to them.
Testimony was likewise elicited that Vu confronted a resident doctor at
the mental health facility in a manner that the resident doctor perceived
...continued
interpretation of criteria that determine the potential dangerousness of a
mentally ill person for the purpose of involuntary admission").
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as physically threatening. Both the psychiatrist and the psychologist
opined that, if Vu were to act in such a manner toward a person
unfamiliar with his mental illness, there would be a risk that the person
would act violently in self-defense. From this evidence, the district court
could "reasonably [have] inferred that, without the care, supervision or
continued assistance of others, [Vu would] be unable to satisfy his . . . need
for. . self-protection or safety." NRS 433A.115(2)(a).
From this same evidence, combined with the testimony that
Vu had refused to take his prescribed antipsychotic medication while
admitted on an emergency basis prior to the district court hearing, the
district court also could have reasonably concluded that "there exist[ed] a
reasonable probability that [Vas . serious bodily injury. . . w[ould]
occur within the next following 30 days unless he . . [was] admitted to a
mental health facility." Id. While Vu argues that no evidence showed that
he had actually committed acts in furtherance of his threats or that
someone had actually assaulted him in self-defense or that such an assault
would actually rise to the level of inflicting serious bodily injury, this
argument stretches NRS 433A.115(2)(a)'s use of the phrases "reasonably
be inferred" and "reasonable probability" too far. The statute does not
require specific evidence "that [Vu would] be unable to satisfy his . . . need
for. . self-protection or safety" and that "[Vu's] serious bodily injury
[would] occur within the next following 30 days"; rather, it requires
evidence to support the reasonable inference and reasonable probability of
those concerns, which the District Attorney provided. Therefore, we
concludeS that the district court reasonably determined that Vu fell within
NRS 433A.115(2)(a)'s definition and that, in turn, involuntary admission
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was appropriate under NRS 433A.310(1)(b)'s clear and convincing
evidentiary standard.
CONCLUSION
NRS 433A.310(5) requires a district court to transmit an
involuntary admission order to the Central Repository at the time the
order is entered, meaning that the district court is not required to wait 30
days for the order to become final under NRS 433A.310(1)(13).
Additionally, the district court reasonably determined that clear and
convincing evidence showed that Vu, at the time of the hearing, had a
mental illness and that because of that illness, Vu was likely to harm
himself. We therefore deny Vu's petition for extraordinary writ relief.
Caiti a—Cr , C.J.
Parraguirre
We concur:
AecA , J.
Hardesty
J.
J.
J.
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PICKERING, J., with whom SAITTA, J., agrees, dissenting:
The loss of liberty that occurs when an individual is
involuntarily committed to a mental hospital is "massive." Humphrey v.
Cady, 405 U.S. 504, 509 (1972). As a consequence, due process protections
apply. Addington v. Texas, 441 U.S. 418, 425 (1979). Chief among those
protections is a heightened burden of proof, meaning the State must prove
its case for involuntary commitment by "greater than the preponderance-
of-the-evidence standard applicable to other categories of civil cases." Id.
at 432-33. The heightened standard of proof protects against an erroneous
deprivation of liberty. It recognizes the fundamental truth that, "[alt one
time or another every person exhibits some abnormal behavior which
might be perceived by some as symptomatic of a mental or emotional
disorder, but which is in fact within a range of conduct that is generally
acceptable." Id. at 426-27. "Obviously, .. . a few isolated instances of
unusual conduct" are not a basis
for compelled treatment and surely none for
confinement. . . . Loss of liberty calls for a showing
that the individual suffers from something more
serious than is demonstrated by idiosyncratic
behavior. Increasing the burden of proof is one
way to impress the factfinder with the importance
of the decision and thereby perhaps to reduce the
chances that inappropriate commitments will be
ordered.
Id. at 427.
The State called two witnesses at Vu's involuntary
commitment hearing, both doctors who had examined Vu and his mental
health records. These doctors concluded that Vu did not pose a threat of
harm to third parties, so his commitment could not be justified on that
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statutory basis. See NRS 433A.310(1)(b) (providing for involuntary
commitment if there is "clear and convincing evidence that the
person. .. is likely to harm. . . others if allowed his or her liberty"). The
State therefore proceeded on the theory that Vu presented a sufficient risk
of harm to himself, such that his commitment was justified on that
alternative statutory basis. See id. (providing for involuntary commitment
if there is "clear and convincing evidence that the person. . . is likely to
harm himself or herself. . . if allowed his or her liberty"). This alternative
theory required the State to prove, by clear and convincing evidence, that
Vu could not meet his basic safety and self-protection needs without the
care, supervision, or continued assistance of others, and that there existed
a reasonable probability that Vu would face death, serious bodily injury, or
physical debilitation in the following 30 days unless he was
institutionalized. NRS 433A.115(2)(A); see NRS 433A.310(1)(b).
The uncontradicted evidence showed that Vu had a bank
account with money in it, an apartment in which to stay, and the ability to
feed and clothe himself. There was also no suggestion of suicidal ideation.
From this it would seem to follow that Vu did not need to be committed to
avoid death, serious bodily injury, or physical debilitation, but the State
maintained otherwise. According to the State, Vu needed to be committed
because, given his behavior and failure to take his medications, Vu might
act threateningly toward third parties, provoking them to attack and
injure him. Setting aside the tenuous nature of an opinion that members
of the general public would likely assault Vu if he acted threateningly
rather than seeking alternative help for themselves or Vu, In re Doe, 78
P.3d 341, 367 (Haw. Ct. App. 2003) (recognizing that erratic and offensive
behavior is not uncommon on the streets of many larger cities, and that it
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may be just as likely the urban residents would respond with compassion
rather than anger and violence), the State identified only two instances of
Vu ever acting threateningly. One instance was the reason for his
emergency hold, when his family felt threatened by his behavior, and the
other was during Vu's emergency intake where Vu—who stands 5' 5" tall
and weighs under 100 pounds—reportedly "broadened his shoulders"
when facing a resident doctor. So there was actually no evidence that Vu
would act threateningly to people other than his family, who had already
shown the ability to call the police if his threatening behavior escalated, or
toward those at the facility holding him against his will. Also of note,
neither Vu's family nor the resident doctor testified at the hearing, and
the doctors who did testify indicated that Vu isolated himself from others,
not that he acted aggressively toward them.
But more significantly, though the doctors generally opined
that a stranger might harm Vu if Vu were released, the only testimony
directed toward the seriousness of the harm Vu might face was Dr. Lewis's
answer of "Yes" to the following question posed by the district attorney:
You indicated that Mr. [Vu] meets criteria for
basic needs, self-protection and safety. When you
apply that basic need in your normal course every
Wednesday and every time you testify, does that
include the provision that there does exist a
reasonable probability that his death, serious
bodily injury or physical debilitation will occur
within the next following 30 days unless he's
admitted?
The State asked this question of Dr. Lewis on redirect examination, and it
prompted an objection from Vu's counsel as being outside the scope of Dr.
Lewis's cross-examination, to which the district court responded: "It
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certainly is but I'll allow the question." Shortly thereafter, during the
State's closing argument, the district court interrupted and said that as to
the reasonable probability of death, serious bodily injury, or physical
debilitation prong:
Apparently, you want me to glean that
information, it only came out from you outside the
scope of direct examination on your second doctor
witness and I frankly don't understand why you
don't ask that question. Why you don't look at the
criteria and ask the questions.
In Vu's closing argument, his attorney asked whether the court had heard
from Dr. Lewis "a single description of how that death was going to occur,
what the serious bodily injury was going to be, why he thought it was
going to occur in the next 30 days or even what that physical debilitation
would be?" and the district court acknowledged "No, I didn't and I just
talked to the District Attorney that I don't think that criteria was
examined other than briefly and oddly."
Under NRS 433A.115(2)(a) and NRS 433A.310(1)(b), the State
was required to prove, by clear and convincing evidence, that there existed
a reasonable probability that Vu would face death, serious bodily injury, or
physical debilitation in the following 30 days unless he was
institutionalized That NRS 433A.115(2)(a) requires a showing of a
reasonable probability that the person would face the types of serious
harm listed means that undoubtedly there is room for prediction and less
than certainty as to whether the person actually will experience serious
harm or exactly what shape it may take. But testimony that consists
solely of a "Yes" to a disjointed leading question on redirect examination
as to whether that doctor generally included in his basic needs analysis
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whether Vu would face serious harm, without any explanation as to why
that doctor thought Vu would face such harm or any estimation of what
such harm might entail, is insufficient evidence to convince a rational fact-
finder, by clear and convincing evidence, that a reasonable probability
existed that Vu would face death, serious bodily injury, or physical
debilitation if not confined See In re Discipline of Drakulich, 111 Nev.
1556, 1566-67, 908 P.2d 709, 715 (1995) (clear and convincing evidence
must be "so strong and cogent as to satisfy the mind and conscience of a
common man. . . . It need not possess such a degree of force as to be
irresistible, but there must be evidence of tangible facts from which a
legitimate inference. . . may be drawn." (quoting Gruber v. Baker, 20 Nev.
453, 477, 23 P. 858, 865 (189W)).
Had the State proved its case, I would agree with the majority
that Vu's involuntary commitment order was properly transmitted to
Central Repository for Nevada Records of Criminal History under NRS
433A.310(5). Indeed, this is one of the stigmatizing consequences that
justifies the high burden of proof the State must shoulder to obtain an
involuntary commitment order. See Addington, 441 U.S. at 425-26 ("it is
indisputable that involuntary commitment to a mental hospital"
stigmatizes the individual and engenders both a "significant deprivation of
liberty" and a host of "adverse social consequences"). But given the State's
sparse and speculative evidence in this case, including the exceedingly
summary testimony on the risk of harm Vu faced if not institutionalized, I
would hold that Vu should not have been detained beyond the initial
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emergency hold. I thus would grant Vu a writ of mandamus directing the
district court to vacate the admission order and to recall its report.
Pickering
I concur:
J.
Saitta
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