In Re the Necessity for the Hospitalization of Mark V.

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-14534
)
MARK V. ) Superior Court No. 4FA-11-00612 PR
)
) OPINION
)
) No. 6911 - May 16, 2014
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Marjorie K. Allard and Michael Schwaiger,
Assistant Public Defenders, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. Ruth Botstein,
Assistant Attorney General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
Justices, and Eastaugh, Senior Justice.* [Carpeneti, Justice,
not participating.]
EASTAUGH, Senior Justice.
STOWERS, Justice, with whom MAASSEN, Justice, joins, dissenting.
I. INTRODUCTION
In November 2011 the superior court entered a 30-day involuntary civil
*
Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
commitment order for Mark V. after the court conducted an evidentiary hearing and
found that Mark posed a “substantial risk . . . of harming others.” 1 Mark argues on
appeal that the court clearly erred in so finding. Because his period of commitment
under that order has expired and Mark was soon released from custody, his “weight of
the evidence” appeal is technically moot. But he argues that the collateral consequences
exception to the mootness doctrine nonetheless justifies appellate review of the
November 2011 commitment order. The circumstances — including four civil
commitment orders entered against Mark earlier in 2011 and the absence of any
indication that the November 2011 commitment will result in any additional adverse
collateral consequences — convince us that the exception is not satisfied. We therefore
do not reach the merits of Mark’s appeal and dismiss it as moot.
II. FACTS AND PROCEEDINGS
Mark V. had a history of mental illness that led to entry of five earlier
involuntary civil commitment orders — one in 2002 and four in 2011 — before entry of
the November 2011 order that Mark challenges here.2 The events leading to the disputed
commitment began on November 7, 2011, when Mark arrived in Fairbanks after
traveling from Anchorage by taxicab at an approximate cost of $900. Soon after
arriving, Mark visited a bank, where his reportedly bizarre and loud behavior prompted
a bank teller to trigger the alarm. Mark then went to a Fairbanks residence and had a
verbal altercation with an occupant. The home was a rental property belonging to
Mark’s family, but the tenants were not relatives of Mark. Although the details
surrounding the altercation are murky, Mark reportedly exhibited threatening behavior
1
We use a pseudonym to protect Mark’s privacy.
2
The parties dispute the number of Mark’s prior involuntary commitments.
The record reflects five prior commitment orders, including four orders entered in
March, May, June, and September 2011.
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toward a tenant, who then called the police. The police took Mark to the Fairbanks
Memorial Hospital mental health unit, where he was admitted.
On November 8 two mental health professionals applied for an ex parte
order authorizing Mark’s hospitalization for an evaluation. Superior Court Judge
Michael A. MacDonald granted the application the next day, ordered Mark’s prompt
evaluation, scheduled a hearing on the anticipated 30-day commitment petition, and
appointed the Public Defender Agency to represent him.
On November 10 a psychiatrist and a psychologist filed a 30-day civil
commitment petition alleging that Mark was mentally ill; they described facts supporting
their allegations that he was gravely disabled and that he was likely to cause harm to
others. Superior Court Judge Randy M. Olsen conducted the commitment hearing the
same day. The court heard testimony from the same psychologist and a different
psychiatrist; they both diagnosed Mark as having some form of schizophrenia and
bipolar disorder and testified that Mark posed a threat of harm to others if released.
At the conclusion of the hearing, the superior court applied the clear and
convincing evidence standard and found that Mark was mentally ill and that as a result
of his mental illness Mark was likely to cause serious harm to others. The court relied
on the evidence of Mark’s recent behavior, including evidence that he threatened a
physician, punched a staff member, and engaged in conduct that “rais[ed] such a conflict
that people call[ed] 911.” The court ordered Mark committed to Alaska Psychiatric
Institute (API) for a period not to exceed 30 days.
Mark appeals.
III. STANDARD OF REVIEW
We resolve issues of mootness using our independent judgment because,
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as a matter of judicial policy, applying the mootness doctrine presents a question of law.3
IV. DISCUSSION
A. The Mootness Doctrine And Its Exceptions
“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.”4
Commitment-order appeals based on assertions of insufficient evidence are moot if the
commitment period has passed, subject to two exceptions: the public interest exception 5
and the collateral consequences exception.6
Mark’s appeal from the November 2011 order is technically moot because
his period of commitment under that order has expired; the parties agree that he was
released from custody. But Mark contends that the collateral consequences exception
applies to his appeal. He also suggests that AS 47.30.765 guarantees, as a matter of
right, an appeal from any commitment order.
In its Brief of Appellee, the State initially argued that Mark’s appeal is moot
and does not fall within a recognized exception to the mootness doctrine; the State
3
Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776 (Alaska 2001)
(citing Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 525 n.13 (Alaska 1993)); see
also In re Joan K., 273 P.3d 594, 595-96 (Alaska 2012) (citing In re Tracy C., 249 P.3d
1085, 1089 (Alaska 2011)) (explaining that we use our independent judgment and “adopt
the rule of law most persuasive in light of precedent, reason, and policy”).
4
Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 380 (Alaska 2007)
(quoting Fairbanks Fire Fighters Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d 1165,
1167 (Alaska 2002)).
5
Id.
6
In re Joan K., 273 P.3d at 597-98 (adopting collateral consequences
exception to mootness); see also In re Jeffrey E., 281 P.3d 84, 86 (Alaska 2012)
(applying collateral consequences exception to mootness).
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therefore urged us to dismiss Mark’s appeal as moot. But at oral argument the State
instead asked us to review the merits of some otherwise-moot commitment orders to
provide more guidance to trial courts.
B. The Collateral Consequences Exception Does Not Apply To This Case.
1. Framing the issue: In re Joan K.
The collateral consequences exception permits 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.”7 In re Joan K.
was an appeal from the appellant’s first involuntary civil commitment order.8 Because
her commitment period had ended, Joan K.’s appeal was technically moot.9 We
nonetheless held that the general collateral consequences of her first involuntary
commitment order were sufficient to satisfy the collateral consequences exception to
mootness, and that no particularized showing of specific collateral consequences was
needed to satisfy the exception.10 Joan K. argued that the consequences included social
stigma, adverse employment restrictions, application in future legal proceedings, and
restrictions on the right to possess firearms.11 We did not specify when an individual
would be required to make a particularized showing of collateral consequences, but we
noted that “some number of prior involuntary commitment orders would likely eliminate
the possibility of additional collateral consequences, precluding the [exception’s]
7
In re Joan K., 273 P.3d 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)).
8
Id. at 598.
9
Id. at 597.
10
Id. at 598.
11
Id. at 597.
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application.”12
More recently, in In re Jeffrey E., we applied our holding in Joan K. to a
sufficiency-of-the-evidence challenge to a commitment order.13 We noted in Jeffrey E.
that evidence-based challenges to expired commitment orders are generally moot and
will not be reviewed absent an exception to the mootness doctrine.14 But we held that
the collateral consequences exception applied to Jeffrey’s appeal because it was Jeffrey’s
first involuntary commitment:
Jeffrey appeals the superior court’s finding that he was
gravely disabled. He does not appeal the mental illness
finding or the finding that API was the least restrictive
alternative. Although Jeffrey was released from API shortly
after being committed and the issue he raises is moot under
the standard established in Wetherhorn v. Alaska Psychiatric
Institute,[15] because this was Jeffrey’s first involuntary
commitment we consider his appeal under the collateral
consequences exception to mootness recently adopted in In
re Hospitalization of Joan K.[16]
Several circumstances persuade us that the collateral consequences
exception does not apply to Mark’s appeal. These circumstances include (1) the fact that
Mark’s challenge is exclusively to the sufficiency of the evidence relied on by the
12
Id. at 598.
13
281 P.3d 84, 86 (Alaska 2012) (considering merits of technically moot
appeal of first involuntary commitment order).
14
Id. at 86 & n.5.
15
156 P.3d 371, 380 (Alaska 2007) (holding that an evidence-based challenge
to an expired 30-day commitment order was moot and would not be reviewed absent an
exception to the mootness doctrine).
16
In re Jeffrey E., 281 P.3d at 86 (internal citations and footnotes omitted).
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superior court; (2) the complete absence of any indication of a procedural or fundamental
flaw in the superior court proceedings; (3) the entry of four involuntary civil commitment
orders in the eight months preceding entry of the order challenged here; and (4) the
absence of any indication the present order might plausibly cause Mark to suffer
incrementally significant collateral consequences.
2. Absence of specific collateral consequences
Mark asserts that the adverse collateral consequences resulting from
involuntary civil commitment orders do not end with entry of the first such order; he
implies that adverse consequences should be presumed from the curtailment of liberty
resulting from involuntary commitments. Although he conceded at oral argument on
appeal that there had been no particularized showing of collateral consequences, his
reply brief asserts that social stigma and the likelihood of future commitments are
collateral consequences that grow with each additional commitment. He also contends
that commitment orders can affect future legal proceedings; he cites as an example the
use of a commitment order to impeach credibility. Mark also argues that appellate
review of involuntary commitment orders should occur whenever there is a possibility
of collateral consequences.
The State’s appellate brief argues that the collateral consequences exception
does not apply to Mark’s appeal because, given his recent prior commitments, the
November 2011 order brought no “easily cognizable additional collateral harms.” As
we explain, we agree with that contention. Our agreement does not mean that the
collateral consequences exception can never apply when a new commitment order is
entered. But we are unpersuaded here that there is any plausible likelihood that
additional collateral consequences could attach to Mark’s November 2011 commitment
order. At least five prior commitment orders had been entered against Mark; four were
very recent, having been entered in the eight months preceding entry of the order
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challenged here. Mark gives us no reason to think that any collateral consequences
potentially attributable to the November 2011 order were not equally attributable to the
four most-recent prior orders.17 And he gives us no reason to think that the collateral
consequences arising from the earlier 2011 orders had become inconsequential and that
the November order therefore inflicted incrementally significant collateral consequences
on Mark. He has not convinced us that the disputed order could have resulted in any
additional collateral consequences. We are also unconvinced that the mere possibility
of additional but unparticularized collateral consequences automatically justifies
substantive review of every subsequent involuntary commitment order entered against
a respondent.
Importantly, there has been no intimation that the commitment hearing was
procedurally or fundamentally flawed in any way.18 Instead, Mark argues only that the
evidence did not support the finding the superior court relied on in entering the
commitment order. His argument really seeks a reweighing of the evidence. His
substantive arguments therefore raise no issue that might justify departing from our usual
approach to reviewing moot issues and our application of the collateral consequences
17
See In re Joan K., 273 P.3d at 598 (“[S]ome number of prior involuntary
commitment orders would likely eliminate the possibility of additional collateral
consequences . . . .”); see also In re Jeffrey E., 281 P.3d at 86 (holding that collateral
consequences exception applied because respondent had no prior commitment orders);
In re Alfred H.H., 910 N.E.2d 74, 84 (Ill. 2009) (holding that collateral consequences
exception did not apply because “[e]very collateral consequence that can be identified
already existed as a result of respondent’s [multiple] previous adjudications and felony
conviction [for murder]”).
18
Cf. Wetherhorn, 156 P.3d at 375-76, 379-80 (internal quotation marks and
citations omitted) (recognizing that involuntary commitment is a “massive curtailment
of liberty that cannot be accomplished without due process of law” and addressing
procedural due process challenges to 30-day commitment petition).
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exception.19
We conclude that the collateral consequences exception does not apply to
this case.
3. The availability of an alternative statutory remedy under
AS 47.30.850
At oral argument the State asserted that AS 47.30.850 provides a form of
alternative relief to respondents, such as Mark, who seek vacatur of commitment orders.
Neither party cited this statute before oral argument.
Because the potential availability of alternative relief from civil
commitment orders could be pertinent to Mark’s arguments that we should review the
November 2011 order despite its mootness, we have reviewed the statute to decide
whether it might be relevant to our mootness analysis.20
Alaska Statute 47.30.850 grants courts the authority to expunge or seal the
19
See In re Joan K., 273 P.3d at 597 (“We . . . do not consider overturning
Wetherhorn’s holding that an evidentiary-based challenge to a completed 30–day
commitment generally is moot.”); see also In re Jeffrey E., 281 P.3d at 86 (recognizing
evidence-based challenge to completed commitment to be moot, but nonetheless
reviewing under collateral consequences exception because it was respondent’s first
involuntary commitment).
20
The availability of alternative relief ameliorating an order’s collateral
consequences is potentially relevant to whether the collateral consequences exception
applies in a particular case. Peter A. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 146 P.3d 991 (Alaska 2006), is illustrative. We there assumed that the
collateral consequences flowing from an adverse adjudication order would have justified
Peter A.’s otherwise-moot appeal, had the State not successfully moved to dismiss the
case at the disposition stage. Id. at 995-96. Because the resulting vacatur of the
adjudication order avoided any collateral consequences to Peter, the exception did not
prevent dismissal of his appeal as moot. Id. at 996.
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records of persons who have been subject to civil commitment proceedings.21 We
conclude that the remedies provided by AS 47.30.850 may avert many of the most
onerous collateral consequences that potentially attach to an involuntary civil
commitment order.
Alaska Statute 47.30.850 was originally enacted in 1981 as part of a major
revision of Alaska’s involuntary commitment legal regime.22 As originally enacted, the
statute provided only the remedy of expungement, but in 1992 the statute was amended
to allow court records to be sealed as well as expunged.23 The legislative history shows
that the alternative remedy of sealing records was added to allay concerns regarding the
unavailability of civil commitment records in subsequent, related criminal proceedings.24
21
AS 47.30.850 provides:
Following the discharge of a respondent from a treatment
facility or the issuance of a court order denying a petition for
commitment, the respondent may at any time move to have
all court records pertaining to the proceedings expunged on
condition that the respondent file a full release of all claims
of whatever nature arising out of the proceedings and the
statements and actions of persons and facilities in connection
with the proceedings. Upon the filing of the motion and full
release, the court shall order the court records either
expunged or sealed, whichever the court considers
appropriate under the circumstances.
22
See ch. 84, § 1, SLA 1981, codified as amended at AS 47.30.655-.660 and
47.30.670-.915.
23
Compare ch. 84, § 1, SLA 1981, with ch. 109, § 11, SLA 1992.
24
During a legislative hearing, Senator Rick Halford expressed concern that
expunged civil commitment records would later be relevant, but unavailable, in related
criminal proceedings. Comments of Senator Rick Halford at 0:42, Hearing on Senate
Bill (S.B.) 153 Before the Sen. Judiciary Comm., 17th Leg., 2d Sess. (Apr. 23, 1992).
(continued...)
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Alaska Statute 47.30.850 states that a respondent, following discharge from
a treatment facility or the issuance of a court order denying a commitment petition, “may
at any time move to have all court records pertaining to the proceedings expunged,”
provided any claims arising from the proceedings are waived. If the required motion and
full release are filed, the statute provides that “the court shall order the court records
either expunged or sealed, whichever the court considers appropriate under the
circumstances.”25
To place the remedies offered by AS 47.30.850 in context, it is worth
reviewing the different levels of access to civil commitment records. “Information and
records obtained in the course of a screening investigation, evaluation, examination, or
treatment are confidential and are not public records, except as the requirements of a
hearing under AS 47.30.660–47.30.915 may necessitate a different procedure.”26
Records that are expunged or sealed are subject to greater restriction than records that
are merely confidential. Access to confidential records is restricted to the parties,
counsel, individuals with a written court order authorizing access, and court personnel.27
Sealed records are available only to the judge and “persons authorized by written order
24
(...continued)
He requested that the bill be rewritten to address this concern, id. at 0:46; when the
Committee next met, the bill had been amended to include the option of sealing records.
Comments of Senator Rick Halford at 0:32, Hearing on S.B. 153 Before the Sen.
Judiciary Comm., 17th Leg., 2d Sess. (Apr. 30, 1992); see also Committee Substitute for
Senate Bill (C.S.S.B.) 153 (JUD), 17th Leg., 2d Sess. (1992).
25
AS 47.30.850.
26
AS 47.30.845.
27
Alaska Admin. R. 37.5(c)(4).
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of the court.”28 The court may allow access to non-public information — including
information designated as confidential or sealed 29 — if the court finds that “the
requestor’s interest in disclosure outweighs the potential harm to the person or interests
being protected.”30 The court rules do not define “expunge,”31 but according to Black’s
Law Dictionary, “expunge” means “[t]o erase or destroy.”32
Because the parties’ briefs did not discuss the statute or its possible effect,
we offer no opinion about the full extent of relief the statute provides.33 But the statute
28
Alaska Admin. R. 37.5(c)(5).
29
Id.
30
Alaska Admin. R. 37.7(a). Relevant considerations include, but are not
limited to, the risk of injury to individuals, individual privacy rights and interests,
proprietary business information, the deliberative process, and public safety. Id.
31
The probate rules governing civil commitment proceedings contain the
court rules’ only reference to expunged civil commitment records. See Alaska R. Prob.
P. 1(b) (stating scope of rules governs “mental commitments under AS 47.30”). The
probate rules require that indices be kept for commitments. Alaska R. Prob. P. 3(d). The
index of commitments is confidential and the index of commitments for which the
records have been expunged under AS 47.30.850 is kept by number. Alaska R. Prob.
P. 3(d), (g).
32
BLACK ’S LAW D ICTIONARY 621 (8th ed. 2004).
33
We have addressed the expungement remedy in context of a court’s
inherent power to expunge criminal records. See Farmer v. State, 235 P.3d 1012 (Alaska
2010); Journey v. State, 895 P.2d 955 (Alaska 1995). Those cases are distinguishable
from Mark’s situation because the legislature explicitly authorized expungement in the
civil commitment context. Nonetheless, our prior discussions of expungement illuminate
some potentially problematic effects of that remedy. We expressed concern that
expungement of records may be too drastic in some contexts. See Farmer, 235 P.3d at
1016 (indicating that expungement of records would remove collateral consequences of
conviction and was therefore not an appropriate remedy); Journey, 895 P.2d at 957 n.6
(continued...)
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does confirm the availability of two remedies — expungement and sealing — that give
respondents some ability to ameliorate the potentially adverse effects Mark identifies.
It therefore supports our view that there is no reason to substantively review Mark’s
now-moot civil commitment appeal.
4. The sufficiency of existing mootness exceptions
There is no question that involuntary civil commitment can severely affect
the civil rights of the committed individual. And there is certainly an institutional
interest in ensuring that each involuntary civil commitment is justified. But we are not
persuaded that these factors require full appellate review of every involuntary civil
commitment order, including even those orders whose periods of commitment have
expired. In our view, the existing recognized exceptions to the mootness doctrine
adequately protect the interests of involuntary civil commitment respondents. Those
exceptions will permit substantive appellate review of those orders when review is
justified, despite their technical mootness. Because no such exception applies here, we
decline to review Mark’s November 2011 commitment order.
C. Alaska Statute 47.30.765 Does Not Supersede The Mootness Doctrine.
Alaska Statute 47.30.765 gives respondents the right to an appeal from an
order of involuntary commitment.34 Although Mark’s briefs did not focus on a statutory
right to appeal, they referred to the statute to support his argument that we should reach
the merits of his appeal. He expanded on this contention at oral argument, where he
asserted that the abbreviated nature of commitment hearings warrants review at the
33
(...continued)
(noting that concerns regarding employer access to criminal history could be satisfied by
“less drastic measures” than expungement, such as sealing records).
34
AS 47.30.765 provides that “[t]he respondent has the right to an appeal
from an order of involuntary commitment.”
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appellate level. In Joan K. we declined to reach an equivalent argument that relied on
AS 47.30.765 because we concluded that the collateral consequences exception
applied.35 We expressed skepticism, however, about interpreting the statute to
completely override the judicial policy of not deciding moot cases.36
Other statutes providing for rights of appeal equivalent to those provided
by AS 47.30.765 are scattered throughout Title 47 37 and elsewhere in the Alaska
Statutes.38 The existence of these statutes has not in practice compelled us to review
otherwise-moot appeals.39 Mootness is a judicial doctrine that is intended to avoid
35
In re Joan K., 273 P.3d 594, 597 & n.12 (Alaska 2012).
36
Id. at 597 (“Joan’s interpretation of [AS 47.30.765] as overriding the
judicial policy of not deciding moot cases appears overbroad . . . .”).
37
For example, AS 47.10.080(i) provides that a parent “may appeal a
judgment or order, or the stay, modification, setting aside, revocation, or enlargement of
a judgment or order issued by the court [in a Children in Need of Aid proceeding].”
38
See, e.g., AS 22.05.010(c) (“A decision of the superior court on an appeal
from an administrative agency decision may be appealed to the supreme court as a matter
of right.”); AS 22.07.020(d) (“An appeal to the court of appeals is a matter of right in all
actions and proceedings within its jurisdiction . . . .”).
39
See, e.g., Peter A. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 146 P.3d 991, 996 (Alaska 2006) (dismissing as moot father’s
challenge to order adjudicating his children in need of aid); Fairbanks Fire Fighters
Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002) (dismissing
as moot appeal from administrative decision); cf. Sweezey v. State, 167 P.3d 79, 80
(Alaska App. 2007) (dismissing as moot claim that sentencing judge erroneously rejected
proposed mitigating factor); Allen v. State, 56 P.3d 683, 685 (Alaska App. 2002)
(holding that “when a judge’s authority to impose a particular sentence does not rest on
the judge’s findings concerning contested aggravating or mitigating factors, any
challenges to the judge’s findings are moot”).
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needlessly deciding issues in cases in which there is no actual controversy 40 and which
would effectively result in advisory opinions.41 We do not read AS 47.30.765 as
requiring appellate review of a moot civil commitment dispute. We express no opinion
about whether a statute could validly require the courts of this state to review moot issues
or whether any such statute would violate the separation of powers.42
D. We Decline To Vacate The Commitment Order.
Finally, Mark contends that even if we conclude that the collateral
consequences exception does not apply, we should nonetheless vacate the commitment
order. He argues that vacatur serves as a safeguard against the possibility that collateral
consequences did, in fact, attach to the commitment order. The State did not brief this
issue, but at oral argument it opposed routine vacatur in moot commitment-order appeals.
Having concluded that the theoretical possibility of collateral consequences
does not itself justify review of this moot appeal, we are likewise unconvinced that there
40
Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776 (Alaska 2001)
(“A claim will be deemed moot if it has lost its character as a present, live controversy.”
(quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998))).
41
See Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985) (dismissing as
moot challenge to legislative council contract because legislative session was over and
the contract at issue had been fully performed, so opinion by court “would be advisory
only”).
42
We have consistently adhered to the principle that “courts should not
resolve abstract questions or issue advisory opinions.” Gilbert M. v. State, 139 P.3d 581,
586 (Alaska 2006) (quoting Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska
1987)). “The separation of powers doctrine limits the authority of each branch to
interfere in the powers that have been delegated to the other branches.” Alaska Pub.
Interest Research Grp. v. State, 167 P.3d 27, 35 (Alaska 2007) (citing Abood v. League
of Women Voters, 743 P.2d 333, 338 (Alaska 1987)).
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is any reason to vacate the order below.43 We also note that Mark has referred us to no
reported cases in which courts both dismissed a commitment-order appeal as moot and
vacated the underlying judgment.44 We therefore decline to vacate the commitment
order.
V. CONCLUSION
For these reasons, we DISMISS the appeal as moot.
43
Although we are not persuaded it would be appropriate to vacate the order
in this case, we express no opinion about whether vacatur might nonetheless be
appropriate under circumstances not present here.
44
Mark’s reliance on Peter A. v. State, 146 P.3d 991 (Alaska 2006), and City
of Valdez v. Gavora, Inc., 692 P.2d 959 (Alaska 1984), is unavailing. Although we
dismissed both appeals as moot and vacated the underlying judgments, neither of those
cases is persuasive in the context of a civil commitment-order appeal. In Peter A. the
prevailing party voluntarily mooted the case. 146 P.3d at 995. In City of Valdez the
parties reached a settlement agreement that effectively nullified the challenged judgment.
692 P.2d at 960. Neither case bears on the issue presented here: whether we should
routinely vacate involuntary civil commitment orders in moot appeals.
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STOWERS, Justice, with whom MAASSEN, Justice, joins, dissenting.
As the court explains, the collateral consequences exception to the
mootness doctrine requires this court 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.”45 But necessarily determining when a judgment
may carry such indirect consequences for the respondent, or what those consequences
may be, requires us to investigate the claim before us and find it unworthy of formal
judicial review in its entirety.46 I find this approach deeply troubling. I continue to
believe this court should accept every appeal of an order of involuntary commitment in
order to be faithful to a citizen’s right to appeal as promised by our legislature in
AS 47.30.765,47 and to honor the citizen’s right to due process of law given the massive
curtailment of liberty at issue.48 Significantly, at oral argument the State agreed that
every commitment carries some collateral consequences to the respondent’s liberty
interests and asked us to review the merits of some otherwise-moot commitment orders
to provide guidance to the trial courts. I would grant the State’s request to review the
45
Opinion at 5, quoting In re Joan K., 273 P.3d 594, 597-98 (Alaska 2012)
(quoting Peter A. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 146
P.3d 991, 994-95 (Alaska 2006)).
46
For example, the court believes M.V.’s recent prior commitments
effectively swallow any conceivable collateral consequences stemming from the
November 2011 order, and the mere possibility of unparticularized collateral
consequences of the last order cannot automatically justify substantive review of every
order brought before this court.
47
AS 47.30.765 provides that “[t]he respondent has the right to an appeal
from an order of involuntary commitment.”
48
See In re Joan K., 273 P.3d at 608 (Stowers, J., dissenting).
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merits of otherwise-moot commitment orders.49 I therefore respectfully dissent.
Under our traditional mootness analysis, an appeal of an involuntary
commitment order cannot defeat the judicially created doctrine of mootness unless one
of two judicially created exceptions applies.50 While the court believes these exceptions
adequately protect the interests of involuntary commitment respondents to “permit
substantive appellate review of those orders when review is justified,” in my view,
simply determining whether to apply the collateral consequences exception itself in this
context requires quasi-substantive appellate review, thereby defeating the interests of
expediency and judicial economy that mootness traditionally promotes and safeguards.51
Here, the court goes through a detailed, four-part analysis spanning several
fact-laden pages to determine that there is no reason to substantively review M.V.’s
now-moot civil commitment order. In other words, in order to build a sufficient record
to properly litigate the collateral consequences exception, the State must compile a
thorough record of prior commitment proceedings. But the State conceded at oral
argument that when “an individual has prior commitments in a remote part of the state
or out of state, those records might not be available at all.” And the expedited nature of
these proceedings leaves little time for the formal discovery required to convince the
court there will or won’t be collateral consequences resulting from the order. Even if the
49
The State also suggested in oral argument that deciding these cases on the
merits would not result in a flood of appeals because the State is “seeing . . . a very small
number of appeals and . . . that would continue to be the case if individuals knew they
had to have something on the merits in order to win.”
50
See In re Joan K., 273 P.3d at 597-98 (adopting collateral consequences
exception to mootness); Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 380-81
(Alaska 2007) (adopting public interest exception to mootness).
51
Honig v. Doe, 484 U.S. 305, 330-32 (1988) (Rehnquist, C.J., concurring)
(discussing the practicalities and prudential considerations of the doctrine).
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records were available, the State noted that “we don’t want to see these proceedings
become a parade of someone’s past misdeeds just to build a record on the collateral
consequences issue, because that might well be prejudicial to the individual.” I agree.
Alaska Statute 47.30.765 plainly reflects the legislature’s policy decision
that a person who has been ordered to be involuntarily committed “has” — not “may
have” — a right to appeal that order: a “respondent has the right to an appeal from an
order of involuntary commitment.” That the court identifies other cases where in the
presence of similar appeal-as-of-right language the court has applied the mootness
doctrine only begs the question; more importantly, it ignores the practical reality that in
every case of involuntary commitment, the 30-day commitment order expires prior to the
ripeness of the appeal.52 In these instances “the citizen’s liberty has been alleged to have
been wrongfully taken by court process,” and so the court “should afford the citizen the
opportunity to prove the error and, if proven, obtain judicial acknowledgment that the
order was erroneously issued.”53 “The injury inflicted by an erroneously issued order of
involuntary commitment ‘lives’ until the wrong is righted.”54
While I appreciate the court’s identification of AS 47.30.850 as a possible
alternative ground of relief to avert “many of the most onerous collateral consequences
that potentially attach to an involuntary civil commitment order,” I submit that the most
onerous consequence of an involuntary civil commitment order may in fact be the
absence of a meaningful appeal. Under this court’s current application of mootness in
involuntary commitment proceedings, the erroneous issuance of an order curtailing a
fundamental liberty interest remains a distinct possibility.
52
In re Joan K., 273 P.3d at 607 (Stowers, J., dissenting).
53
Id.
54
Id. at 608.
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But even if one were to disagree with my opinion that the court should
accept every appeal of an order of involuntary commitment, there are other alternatives
far superior to this court’s current approach. One such alternative is the one adopted in
Minnesota: a rebuttable presumption that there will be collateral consequences from an
involuntary commitment order that precludes mootness where “real and substantial
disabilities” result from a judgment.55 As explained by the Minnesota Supreme Court,
“[I]f ‘real and substantial’ disabilities attach to a judgment, we do not require actual
evidence of collateral consequences but presume such consequences will result. . . . A
party may rebut this presumption of collateral consequences only by showing ‘there is
no possibility that any collateral legal consequences will be imposed on the basis of the
challenged [judgment].’ ”56 In this scenario, the State has the burden of rebutting the
presumption, and, if it fails, the case proceeds to the appellate court on the merits. The
State conceded at oral argument this “would be a practical way to go” because “it [takes]
so many more of our resources and the court’s resources to adjudicate the collateral
consequences issue than it would be just to decide the merits of M.V.’s appeal.” I agree
with the State and remain mystified why the court persists in failing to recognize and
give real meaning to the great liberty interests at stake in cases where Alaskan citizens
are involuntarily committed to a mental institution. Consequently, I must dissent.57
55
In re McCaskill, 603 N.W.2d 326, 329 (Minn. 1999) (internal quotation
marks omitted).
56
Id. (second alteration in original, citations omitted).
57
Notwithstanding the court’s detailed analysis of M.V.’s case, it did not
reach the merits of whether there was sufficient evidence to support the superior court’s
issuance of the commitment order. I also do not reach that issue because, given the
nature of the court’s decision, I am most concerned about M.V.’s and other respondents’
rights to appeal, and have no reason to examine the merits.
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