In the Matter of the Necessity for the Hospitalization of JACOB S.
from the Superior Court No. 3AN-14-03156 PR of the State of
Alaska, Third Judicial District, Anchorage, Patrick J. McKay,
Appearances: Meg Allison Zaletel, Zaletel Law, Anchorage, for
Borghesan, Assistant Attorney General, Anchorage, and Craig
W. Richards, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger,
respondent in involuntary commitment and medication
proceedings appeals a number of issues related to findings
that he was mentally ill and posed a risk of harm to others.
The superior court ordered both 30- and 90-day commitments -
the latter following a jury trial. The court also entered
medication orders after finding the respondent unable to make
mental health treatment decisions.
among the issues the respondent raises are two legal
questions. First, when a respondent requests a jury trial on
a 90-day commitment petition, who - between the jury and the
court - decides the factual underpinning for and the ultimate
question of least restrictive alternative to commitment? We
conclude that this decision making is for the court. Second,
AS 47.30.837(d)(1) sets out a four-part test -joined by the
conjunctive "and" - for determining whether a
respondent is competent to make mental health treatment
decisions; can a respondent be found incompetent if one part
is not met? We conclude that the answer is "yes."
these conclusions in mind, we resolve the issues raised by
the respondent in the State's favor. We therefore affirm
the superior court's commitment and medication orders.
FACTS AND PROCEEDINGS
was hospitalized for a mental health evaluation in January
2015, after his domestic partner filed an involuntary
commitment petition because Jacob stopped taking his
medication, she observed him experiencing paranoid delusions
about their neighbor, and she thought his delusions had
caused him to act violently toward their neighbor. After an
evaluation Dr. David Mack at Alaska Psychiatric Institute
(API) filed a 30-day commitment petition asserting that Jacob
had a mental illness and was likely to cause harm to himself
or others. Dr. Mack also petitioned for court approval to
administer psychotropic medication because Jacob lacked
capacity to give informed consent.
magistrate judge held a hearing on the petitions. Both
Jacob's neighbor and Jacob's partner testified
telephonically. Jacob's neighbor testified that Jacob had
filed a restraining order against her in November 2014
alleging that she was stalking him, had broken into his
house, and had been tasing him with a "stop gun."
The neighbor also testified to her suspicion that Jacob had
thrown a rock through her window and attempted to set fire to
her house with a "Molotov cocktail" on two separate
occasions the previous month.
partner testified that she recognized several bottles from
the "Molotov cocktail" incident as having come from
their house. She also testified that Jacob had been doing
"strange things" and then did not remember what he
had done, for example connecting an electric welder to their
house's back door. He had unplugged the telephone then
denied doing so. He layered towels, cardboard, newspaper, and
pillows over the house's windows and couch to protect
himself from the neighbor's "tasing."
Mack testified about Jacob's delusional disorder
diagnosis. Dr. Mack was concerned that Jacob's strange
behavior concerning his neighbor was connected to his fixed
delusions, but Dr. Mack thought psychotropic medication might
soften those delusions. Jacob refused to acknowledge he was
suffering from delusional disorder, and he had not yet
that Jacob suffered from a mental illness and posed a risk of
danger to others, the magistrate judge recommended the 30-day
commitment. The magistrate judge then addressed the
medication petition. The court-appointed visitor testified
that although Jacob "demonstrate[d] rational thought
process in regards to medications, " his inability to
recognize his mental illness meant "he would not have
the capacity based on that particular reason alone." Dr.
Mack stated that treatment methods other than psychotropic
medication would not be successful and that Jacob could
meaningfully participate in treatment decisions only if he
recognized his disorder. The magistrate judge found that
Jacob lacked capacity to give informed consent, that
medication was in Jacob's best interests, and that no
less restrictive alternative was available. The superior
court approved and adopted these findings and issued the
Mack filed another petition in February for a 90-day
commitment order and an accompanying petition to continue
administration of psychotropic medication. Jacob requested a
jury trial. Much of the trial testimony concerned
Jacob's mental health and actions prior to his original
commitment and was repetitious of that given at the 30-day
commitment hearing. Jacob's brother testified that he was
willing to provide housing if Jacob were released from API.
Because Jacob's brother's residence is only two
blocks away from Jacob's, the State questioned whether
that placement would protect Jacob's neighbor.
Jacob's brother responded that he would monitor Jacob and
prevent him from returning there. Timothy Mannen, a
board-certified psychiatric nurse practitioner at API,
testified that someone with Jacob's delusions would not
simply get better over time and that merely moving Jacob to a
new residence would not alleviate the delusions. Mannen
stressed that although treatments other than commitment and
medication, like therapy, are available, it is difficult to
convince a person suffering from delusional disorder to
"restructure or realize that what... they are thinking
that is fixed and false and disordered is not true."
jury found that Jacob was mentally ill; that as a result he
was likely to cause harm to others; and that he was advised
of, but did not accept, voluntary treatment. The superior
court then held a further evidentiary hearing to decide
whether a less restrictive alternative to commitment existed
and whether involuntary medication was in Jacob's best
interests. Jacob testified, expressing a willingness to take
medication and participate in therapy if he were released to
a family member's home. Mannen testified that placement
with a family member was not appropriate because Jacob's
response to the medication was not yet "robust"
enough. The court visitor who had interviewed Jacob a week
earlier testified that he did not have the capacity to
participate in his treatment planning. The court determined
that until Jacob's delusions softened, releasing him to a
family member would not adequately protect the public. The
court also expressed doubt that Jacob would take his
medication if released from API. The court determined that no
less restrictive alternative to commitment at API existed at
that time, and that medication was in Jacob's best
appeals, arguing that allowing telephonic testimony at the
30-day hearing violated his due process rights and was an
abuse of discretion and that the 30-and 90-day commitment
orders and the medication orders were erroneously issued. The
State contends that the superior court's rulings were
correct and that Jacob's challenges to the medication
orders are moot.
STANDARDS OF REVIEW
review a trial court's decision to allow telephonic
testimony for abuse of discretion. "We will find an abuse
of discretion when the decision on review is manifestly
unreasonable." "Factual findings in involuntary
commitment or medication proceedings are reviewed for clear
error, " and we reverse those findings only if we have a
"definite and firm conviction that a mistake has been
made." Whether those findings meet the
involuntary commitment and medication statutory requirements
is a question of law we review de novo. "We apply
our independent judgment to the interpretation of both the
Alaska Constitution and statutes, adopting 'the rule of
law that is most persuasive in light of precedent, reason,
and policy.' " We use our independent judgment to
determine if a pending controversy is moot.
30-Day Commitment Order
was not error to allow telephonic testimony at the hearing.
asserts that it was a violation of his due process rights to
allow his partner and his neighbor to testify telephonically
at the 30-day hearing because their credibility was a central
issue. "A civil litigant's right to confront
witnesses is . . . founded upon notions of procedural due
process, " and the question we must decide is
"whether due process, in this case, necessitates
that" Jacob "be afforded the right to
[confront]" the witnesses in person rather than
telephonically. Alaska uses the Mathews v.
Eldridge three-part balancing test "for determining
the necessary extent of due process" in the commitment
context. We consider:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.
commitment imposes a serious limitation on an
individual's liberty interest,  and Jacob's
insistence that witnesses testify in person thus implicates a
private interest of significant weight.
previously examined the risk of erroneous deprivation of a
right and stated that "[a]lthough the due process
analysis is a flexible and contextual one focusing on the
interest and not the outcome, there must be some actual
prejudice under the second prong and not merely the
'theoretical possibility of prejudice.'
" This means Jacob must show that he
"was likely to have achieved a more favorable
outcome" had the witnesses testified in
person. Jacob's attorney cross-examined the
witnesses, but chose not to attack their credibility during
the cross-examination. When Jacob's attorney objected to
the telephonic testimony, the magistrate judge responded that
he would "be careful" about credibility issues.
Because Jacob's right to cross-examine the witnesses was
protected and he made no express attempt to bring their
credibility into question, we cannot easily conclude that a
different result would have been reached had the witnesses
testified in person.
State's asserted interest is in providing evidence
quickly so that "potentially dangerous people will [not]
be released from the hospital without treatment that protects
them and the community." Involuntary commitment hearings
must occur within 72 hours of the respondent's initial
detention,  requiring flexibility in gathering
evidence to meet the deadline. We recognize the significant
weight of the State's interest in protecting respondents
and the community by providing evidence within that short
the low erroneous deprivation risk and the State's great
health and public safety interest tip the scale in the
State's favor - even balanced against Jacob's
significant liberty interest - we conclude that telephonic
testimony at the 30-day hearing did not deprive Jacob of his
due process rights.
addition to his due process argument, Jacob contends that the
magistrate judge abused his discretion because no good cause
existed for the witnesses to appear telephonically. Courts
have discretion to allow a witness to appear telephonically
at a hearing "for good cause and in the absence of
substantial prejudice to opposing
parties." The State expressed doubt that the
witnesses could arrive at the hearing in a timely manner, in
part because one witness is wheelchair bound; both witnesses
also had protective orders in place against Jacob. The record
supports that there was good cause for allowing telephonic
testimony and Jacob has failed to establish any resulting
prejudice. We therefore conclude that the magistrate judge
did not abuse his discretion in allowing the telephonic
30-day order was not erroneously issued.
conclusion of a 30-day commitment hearing a court "may
commit the respondent to a treatment facility ... if it
finds, by clear and convincing evidence, that the respondent
is mentally ill and as a result is likely to cause harm to
the respondent or others." The respondent is
"likely to cause serious harm" if the respondent
"poses a substantial risk of harm to others as
manifested by recent behavior causing, attempting, or
threatening harm, and is likely in the near future to cause
physical injury, physical abuse, or substantial property
damage to another person."
superior court found that Jacob was mentally ill and was
likely to cause harm to others as a result of his mental
illness because of: (1) Jacob's partner's
"serious concerns" about Jacob "doing things .
. . that he was disavowing any knowledge of, " including
connecting an electric welder to their home's metal door;
(2) his partner's recognition of "the bottles used
to make the so-called Molotov cocktails . . . from her own
house"; (3) his partner's testimony that there were
"a couple incidents" involving "dangerous
things occurring"; and (4) Dr. Mack's statements
about whether Jacob's "delusions . . . [and] fixed
false beliefs, [were] resulting in behavior that poses a
substantial risk to others."
does not challenge the finding that he was mentally ill. But
Jacob urges us to review de novo the superior court's
decision regarding harm to others because Jacob "was
committed based on speculation and not on facts sufficient to
meet a clear and convincing standard of proof." We
decline to do so because Jacob's argument, though couched
as a legal question, simply asks us to reweigh the evidence
presented at the 30-day hearing and choose between
conflicting interpretations. We will not overturn a fact
finding unless left "with a definite and firm conviction
that a mistake has been made." Conflicting evidence is
generally insufficient to overturn a fact finding, and we
will not reweigh evidence if the record supports the
partner testified that she was concerned for her safety
because of his actions. She stated that she recognized the
bottles used to set fire to their neighbor's house as
coming from her house. The neighbor's testimony also
supports the court's inference that Jacob had been
involved with both the rock and "Molotov cocktail"
incidents. Dr. Mack described the danger of Jacob's
delusional disorder as his false beliefs about his neighbor
manifesting in actions like "setting dangerous booby
traps, taking preemptive activities, or going to extreme
measures to ensure security." Because evidence in the
record supports the court's finding, we cannot say it is
clearly erroneous. Accordingly, the 30-day order was not
90-Day Commitment Order
30-day order did not taint the 90-day order.
Statute 47.30.740(c) allows "findings of fact relating
to the respondent's behavior made at a 30-day commitment
hearing under AS 47.30.735" to be admitted as evidence,
and those findings "may not be rebutted except that
newly discovered evidence may be used for the purpose of
rebutting the findings." Jacob asserts that this
statute allowed the State to present much of the same
evidence at the 90-day hearing as was provided at the 30-day
hearing, prejudicing him because he could not raise issues
concerning his partner's and neighbor's credibility
or challenge the allegedly erroneous findings from the 30-day
hearing without newly discovered evidence.
first contention, that he was not able to raise issues
concerning his partner's or neighbor's credibility,
is without merit. Jacob could have raised issues about those
witnesses' credibility at the 90-day hearing regardless
of any finding made at the 3 0-day hearing. But when
Jacob cross-examined both witnesses at the 90-day hearing, he
made no attempt to suggest they were not credible.
second contention is also without merit. Jacob argues that
because he could not refute findings from the 30-day hearing
without new evidence, legal and factual errors occurring in
that proceeding tainted any findings from the 90-day hearing.
But, as explained above, the 30-day order was not erroneously
issued, and we find no error in accepting the facts
established at the 30-day hearing.
jury instructions were correct.
Instruction No. 17 reads:
On January 12, 2015, the court issued findings of fact
following hearings related to a petition for hospitalization.
These facts cannot be rebutted during this hearing, unless
[Jacob] brings forth new evidence. This means you must accept
those facts as true. The facts ...