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

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

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

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

In the Matter of the Necessity for the 

Hospitalization of 

DANIEL G. 

) 

) Supreme Court No. S-15100 

Superior Court No. 3AN-13-00454 PR 

O P I N I O N 

No. 6862 – February 7, 2014 

) 

) 

) 

) 

) 

) 

) 

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

Judicial District, Anchorage, Frank A. Pfiffner, Judge. 

Appearances: James B. Gottstein, Law Project for Psychiatric 

Rights, Inc., Anchorage, for Appellant Daniel G. Laura Fox, 

Assistant Attorney General, Anchorage, and Michael C. 

Geraghty, Attorney General, Juneau, for Appellee State of 

Alaska. 

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, 

Justices. [Maassen, Justice, not participating.] 

FABE, Chief Justice. 

I. INTRODUCTION 

Daniel G. appeals an ex parte order authorizing a 72-hour psychiatric 

evaluation issued after his emergency detention. 1 The evaluation personnel determined 

1 We use a pseudonym to protect Daniel’s privacy. 
 

 

 

 

 

 

 

 

 

 

 

 

that Daniel did not meet the statutory criteria for involuntary commitment, and he was 

released before the expiration of the 72-hour evaluation period. He argues that the 

evaluation order violated his constitutional right to due process because it was issued on 

an ex parte basis, without notice and a hearing, while he was safely in protective custody. 

The superior court denied Daniel’s motion to vacate the evaluation order as moot in light 

of Daniel’s release. We conclude that although Daniel’s appeal is technically moot, the 

public interest exception to the mootness doctrine applies, and we reach the merits of his 

due process claim. We further conclude that the 72-hour evaluation order and the 

statutory evaluation procedures do not violate due process, and we affirm the evaluation 

order. But we remand this case to the superior court for correction of the title of the 

superior court’s order authorizing Daniel’s hospitalization for evaluation. 

II. FACTS AND PROCEEDINGS 

On the morning of February 26, 2013, a police officer took emergency 

custody of Daniel after Daniel’s father reported that Daniel was threatening suicide. At 

8:50 a.m. the police officer transported Daniel to the Providence Alaska Medical Center 

Psychiatric Emergency Room under AS 47.30.705 and gave the Providence staff a 

“Notice of Emergency Detention and Application for Evaluation.”2 

At approximately 3:10 p.m., Providence staff filed a “Petition for 

Involuntary Commitment for Evaluation” under AS 47.30.700 and AS 47.30.710, asking 

the superior court to authorize detention of Daniel at the Alaska Psychiatric Institute 

2 AS 47.30.705(a) provides that “[a] peace officer . . . who has probable 

cause to believe that a person is gravely disabled or is suffering from mental illness and 

is likely to cause serious harm to self or others of such immediate nature that 

considerations of safety do not allow initiation of involuntary commitment procedures 

set out in AS 47.30.700, may cause the person to be taken into custody and delivered to 

the nearest evaluation facility.” 

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(API) for 72 hours for psychiatric evaluation.3 The petition stated that Daniel had a 

history of mental illness with multiple hospitalizations and diagnoses. It proceeded to 

detail Daniel’s suicide threats as well as his violent threats against his father. The 

petition concluded that Daniel “refuses mental health intervention, has no insight into his 

mood problem and requires involuntary hospitalization for his safety.” 

Magistrate Judge Jonathon H. Lack signed the “Order on Petition for 

Involuntary Commitment for Evaluation” at 3:45 p.m., which authorized transfer of 

Daniel to API for an evaluation period not to exceed 72 hours.4 The order stated that the 

trial court had considered the sworn allegations in the petition and found that the 

respondent was likely to cause serious harm to himself because the petition alleged that 

he was “actively suicidal.” 

The evaluation order required API to have Daniel evaluated by a mental 

health professional and a physician within 24 hours of his arrival. Daniel was admitted 

to API later that day at 7:29 p.m. 

The next day, on February 27 at 3:03 p.m., Superior Court Judge Frank A. 

Pfiffner approved and signed the magistrate judge’s recommended order. The superior 

3 See AS 47.30.710(b) (authorizing hospitalization if mental health 

professional “has reason to believe that the respondent is (1) mentally ill and that 

condition causes the respondent to be gravely disabled or to present a likelihood of 

serious harm to self or others, and (2) is in need of care or treatment,” and requiring 

application for “an ex parte order authorizing hospitalization for evaluation” if no 

judicial order has been obtained under AS 47.30.700). 

4 Because hospitalization for evaluation does not constitute an “involuntary 

commitment,” the titles of the court system’s MC-100 and MC-305 forms have been 

changed during the pendency of this appeal to accurately reflect the statutory language 

of AS 47.30.710. Form MC-100 is now titled “Petition for Hospitalization for 

Evaluation.” Form MC-305 is now titled “Order Authorizing Hospitalization for 

Evaluation.” 

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court scheduled a 30-day commitment hearing for February 28 at 1:30 p.m. to be held 

if a commitment petition was filed during Daniel’s detention. The superior court gave 

Daniel and the Public Defender Agency notice of the scheduled hearing. 

On the morning of February 28, Daniel filed a motion to vacate the order. 

Daniel argued before the superior court that (1) the order violated due process because 

it was issued ex parte without an emergency justification; (2) the order should not have 

been implemented before it was signed by the superior court judge; (3) the order was 

issued without a sufficiently searching inquiry; (4) the findings were insufficient to 

support the order; (5) the order impermissibly relied on hearsay; and (6) the petition filed 

by Providence staff was defective. 

Later the same morning of February 28, at 11:25 a.m., API evaluation 

personnel discharged Daniel because they “did not find that [he] met the standards for 

commitment specified in AS 47.30.700.” 

A compliance hearing was held that afternoon. The State’s representative 

informed the magistrate judge that Daniel had already been discharged. Daniel reminded 

the court that he had filed a motion to vacate the order that morning and advised the court 

that he did not consider the motion to be moot. 

On March 6 the superior court denied Daniel’s motion to vacate the order, 

reasoning that the motion was moot in light of Daniel’s release. Daniel appeals his due 

process claim and the denial of his motion to vacate. 

III. STANDARD OF REVIEW 

We consider whether an order of the superior court is appealable de novo.5 

“Mootness is a matter of judicial policy and its application is a question of law” that we 

5 Husseini v. Husseini, 230 P.3d 682, 685 (Alaska 2010). 

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also review de novo.6 Under de novo review, we apply our “independent judgment to 

the interpretation of the Alaska Constitution and statutes.”7 When reviewing a question 

de novo, our duty is to adopt “the rule of law that is most persuasive in light of 

precedent, reason, and policy.”8 

IV.	 DISCUSSION 

A.	 The Denial Of Daniel’s Motion To Vacate The Evaluation Order Was 

Appealable. 

The State argues that Daniel cannot bring this appeal because the evaluation 

order is not a final appealable judgment under Appellate Rule 202(a)9

 and because 

Daniel prevailed below. The State contends that the evaluation order did not resolve a 

civil commitment proceeding but specifically contemplated further proceedings in which 

the respondent’s mental health status and the necessity of commitment would be litigated 

if necessary.10 The language of the order states that “examination and evaluation shall 

be completed within 72 hours” and a “petition for a 30-day commitment shall be filed 

6 In re Joan K., 273 P.3d 594, 595-96 (Alaska 2012) (citing In re Tracy C., 

249 P.3d 1085, 1089 (Alaska 2011)). 

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

(footnotes omitted) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)). 

8	 Id. 

9 “[A]n order must constitute a final judgment, such that it ‘disposes of the 

entire case and ends the litigation on its merits,’ for this court to review it on appeal.” 

Husseini, 230 P.3d at 687 (quoting Richard v. Boggs, 162 P.3d 629, 633 (Alaska 2007)). 

10 “The basic thrust of the finality requirement is that the judgment must be 

one which disposes of the entire case, ‘. . . one which ends litigation on the merits and 

leaves nothing for the court to do but execute the judgment.’ ” Martech Constr. Co. v. 

Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1153 (Alaska 1993) (omission in original) 

(quoting Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1030 

(Alaska 1972)). 

-5-	 6862
 
 

 

 

 

 

 

 

 

 

or the respondent shall be released . . . before the end of the 72-hour evaluation period” 

in compliance with AS 47.30.715.11 The State argues that no final appealable judgment 

exists unless and until an evaluation order is followed by a commitment hearing and a 

30-day commitment order. 

In its argument, the State does not address the superior court’s denial of 

Daniel’s motion to vacate the evaluation order as a possible basis for appeal, focusing 

only on the evaluation order. By contrast, Daniel asserts that the denial of his motion to 

vacate ended the litigation and that under this court’s precedent “[a] final, appealable 

‘judgment’ is one that, however denominated, ‘disposes of the entire case and ends the 

litigation on the merits.’ ” 12 Daniel argues that for the purposes of determining finality, 

we have emphasized that “the reviewing court should look to the substance and effect, 

rather than form, of the rendering court’s judgment.” 13 Martech Construction Co. v. 

Ogden Environmental Services, Inc., the case relied on by the State, also emphasizes that 

“[t]his court should look to the effect of the judgment, rather than the form.”14 Daniel 

reasons that after the superior court decided that the motion to vacate was moot, there 

was nothing further he could do; therefore, the case is appealable. Daniel took care at 

the compliance hearing to state on the record that he did not consider his motion to 

vacate to be moot. 

11 AS 47.30.715 provides that “[w]hen a facility receives a proper order for 

evaluation, . . . [t]he facility shall promptly notify the court of the date and time of the 

respondent’s arrival. The court shall set a date, time, and place for a 30-day commitment 

hearing, to be held if needed within 72 hours after the respondent’s arrival . . . .” 

12 Denali Fed. Credit Union v. Lange, 924 P.2d 429, 431 (Alaska 1996) 

(quoting Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 634 (Alaska 1993)). 

13 Id. (internal quotation marks omitted). 

14 852 P.2d at 1153. 

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The State’s second argument is that Daniel is not entitled to appeal because 

the superior court proceedings resolved in his favor when he was released without being 

committed. The State characterizes the evaluation order as an interlocutory order15 and 

analogizes the situation to both criminal defendants who are arrested on probable cause 

but released without conviction and civil litigants who are denied summary judgment but 

win at trial. The State again does not address the denial of Daniel’s motion to vacate the 

order. 

Daniel disputes the State’s assertion that he prevailed completely in the end 

and the relevance of the State’s analogies. He points out that he was released based on 

API’s determination that he did not meet commitment criteria. He argues that the court 

never ruled in his favor: the only trial court rulings — the ex parte evaluation order and 

the denial of his motion to vacate — were resolved against him. 

We agree with Daniel that the denial of his motion to vacate ended the 

litigation below. We also agree with Daniel that because his motion was denied, he did 

not prevail completely below. We “look to the effect of the judgment, rather than the 

form,”16 and the effect of the denial of Daniel’s motion to vacate was to end litigation in 

the trial court and to leave Daniel with no recourse other than appeal to this court. We 

therefore conclude that the denial of Daniel’s motion to vacate the evaluation order was 

appealable.17 

15 “A party generally may not appeal a judgment in its favor in order to 

challenge an interlocutory order.” Peter A. v. State, Dep’t of Health & Soc. Servs., Office 

of Children’s Servs., 146 P.3d 991, 994 (Alaska 2006) (citing Fairbanks Fire Fighters 

Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002)). 

16 Martech, 852 P.2d at 1153. 

17 The State also argues that AS 47.30.765, which provides “[t]he respondent 

(continued...) 

-7- 6862
 
 

 

 

 

 

 

B.	 Although This Case Is Now Moot, We Apply The Public Interest 

Exception To Mootness In Order To Reach The Merits Of Daniel’s 

Due Process Claims. 

“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.” 18 This court has 

deemed appeals related to commitment orders to be moot when the commitment period 

has passed. 19 But this rule is subject to at least two exceptions: the public interest 

exception20 and the collateral consequences exception.21 

17(...continued) 

has the right to an appeal from an order of involuntary commitment,” does not give 

Daniel a right to appeal because the evaluation order was not “an order of involuntary 

commitment.” But Daniel does not base his right to appeal on this statutory provision 

and does not address AS 47.30.765 in his briefing. 

18 Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 380 (Alaska 2007) 

(quoting Fairbanks Fire Fighters, 48 P.3d at 1167). 

19 Id. at 380. Daniel asks this court to reconsider the mootness holding of 

Wetherhorn and argues that “people subjected to involuntary commitment orders have 

the right to have their appeals heard on the merits, regardless of whether they have 

demonstrated collateral consequences or the public interest exception to the mootness 

doctrine applies.” Because we apply the public interest exception to reach the merits of 

Daniel’s due process claims, we decline to consider overruling Wetherhorn’s general 

mootness holding. 

20 Id. at 380-81; E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1106-07 

(Alaska 2009); see also In re Joan K., 273 P.3d 594, 596 (Alaska 2012). 

21 In re Joan K., 273 P.3d at 597-98. 

-8-	 6862
 
 

 

 

 

 

 

 

1. Daniel’s appeal satisfies the public interest exception. 

We “will . . . consider a question otherwise moot if it falls within the public 

interest exception to the mootness doctrine.”22 In determining whether the public interest 

exception applies, we look to these factors: “(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.”23 “None 

of the individual factors is dispositive; rather, we use our discretion to determine whether 

the public interest dictates that immediate review of a moot issue is appropriate.”24 

In E.P. v. Alaska Psychiatric Institute, we applied the public interest 

exception when we determined that (1) the questions of statutory interpretation and 

procedure did not depend on the appellant’s unique facts and were capable of repetition; 

(2) the questions would circumvent review because of the involuntary commitment time 

frame; and (3) the questions raised were “important to the public interest” because 

involuntary commitment entails a “ ‘massive curtailment of liberty,’ ” and “[t]he 

interpretation and scope of involuntary commitment statutes affect the power of the state 

to curtail the liberty of any member of the public.”25 All three factors weigh in favor of 

review in this case. 

22 Wetherhorn, 156 P.3d at 380. 

23 Id. at 380-81 (quoting Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 

532, 536 (Alaska 2005)). 

24 Fairbanks Fire Fighters Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d 

1165, 1168 (Alaska 2002). 

25 205 P.3d at 1106-08 (quoting Wetherhorn, 156 P.3d at 375). 

-9- 6862
 
 

 

 

 

 

 

First, as in E.P., 

26 the disputed issues in this case do not depend heavily on 

Daniel’s unique facts and therefore are capable of repetition. “When disputed issues turn 

on unique facts unlikely to be repeated, we have refused to find an exception to 

mootness.”27 But Daniel is not challenging his initial detention, which might entail casespecific factual analysis, but rather the fact that he was subject to an ex parte evaluation 

order. The question of the constitutionality of subjecting someone in custody under 

AS 47.30.705 to an ex parte proceeding arises every time that an evaluation petition is 

filed under AS 47.30.710(b). 

Second, due process challenges to evaluation orders under AS 47.30.710(b) 

will repeatedly circumvent review because the authorized 72-hour confinement period 

will have long since expired before an appeal can be heard.28 

Third, Daniel argues that the question whether people are regularly 

subjected to unconstitutional ex parte proceedings in the superior court presents an issue 

of sufficient importance to the public interest as to justify overriding the mootness 

doctrine. Daniel also notes the importance of providing guidance to courts as to when 

such ex parte orders are permissible. The State argues that this case does not warrant 

discretionary review. But Daniel’s due process claims do implicate the scope and 

26 Id. at 1107. 

27 Id. (citing Wetherhorn, 156 P.3d at 381, where we found the public interest 

exception inapplicable under the first prong because the facts were specific to 

Wetherhorn and therefore the issue was not capable of repetition). 

28 See id. (stating that “[i]t is quite unlikely that an appeal from a 30-day or 

90-day commitment, or even a 180-day commitment, could be completed before the 

commitment has expired”). 

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interpretation of the statutory provisions that allow the State to curtail the liberty of 

members of the public. 29 We thus conclude that Daniel’s claims satisfy the third factor. 

Because all three factors of the public interest exception to the mootness 

doctrine are satisfied, we conclude that we will review Daniel’s due process claims.30 

2.	 Daniel’s evaluation order form, based on a court system form, 

contained inaccurate language which we have corrected. 

Daniel argues that the collateral consequences exception to the mootness 

doctrine should be extended to the appeal of orders authorizing hospitalization for 

evaluation.31 He points to the former title of form order MC-305, “Order on Petition for 

29	 See id. 

30 Daniel argued in the alternative that if this court holds his appeal moot and 

declines review, this court should order a vacatur of the order. Because we reach the 

merits of Daniel’s claim, we do not decide whether vacatur of the superior court’s order 

would have been appropriate if we had dismissed his claim as moot. We do note the 

availability of a potential alternative remedy under AS 47.30.850, which 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. 

31 “[T]he collateral consequences doctrine ‘allows courts to decide otherwisemoot 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.’ ” In re Joan K., 

273 P.3d 594, 597-98 (Alaska 2012) (quoting Peter A. v. State, Dep’t of Health & Soc. 

(continued...) 

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Involuntary Commitment for Evaluation,” to argue that an order authorizing a 72-hour 

hospitalization for evaluation under AS 47.30.710(b) could entail collateral 

consequences similar to those of an involuntary commitment order. 

We acknowledge that the former title of the form order incorrectly referred 

to involuntary commitment instead of using the statutory language, “ex parte order 

authorizing hospitalization for evaluation,” found in AS 47.30.710(b). And we 

understand Daniel’s concerns about the possibility of collateral consequences stemming 

from the use of the term “involuntary commitment” to refer to a 72-hour hospitalization 

for evaluation under AS 47.30.710(b). As noted above, we have taken administrative 

action during the pendency of this appeal to correct the title of forms MC-100 and 

MC-305. Form MC-100 is now titled “Petition for Hospitalization for Evaluation.” 

Form MC-305 is now titled “Order Authorizing Hospitalization for Evaluation.” 

Because we reach the merits of Daniel’s due process claims under the public interest 

exception to the mootness doctrine, we do not further address the applicability of the 

collateral consequences exception in the context of a 72-hour evaluation order. 

C.	 The Evaluation Order Issued Ex Parte Did Not Violate Daniel’s 

Constitutional Right to Due Process. 

Daniel claims that his procedural due process rights were violated because 

he was not given notice and a hearing prior to the issuance of the order that he be 

hospitalized for a 72-hour evaluation. He argues that because he was already in 

protective custody, there was no emergency that would justify the lack of notice and a 

hearing before the issuance of the 72-hour evaluation order. 

31(...continued) 

Servs., Office of Children’s Servs., 146 P.3d 991, 994-95 (Alaska 2006)). 

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1.	 An evaluation order issued in compliance with AS 47.30.710 

satisfies Wetherhorn’s requirement of an “expedited process.” 

Daniel relies on Wetherhorn v. Alaska Psychiatric Institute, in which we 

held that “[i]nvoluntary commitment implicates Alaska’s constitutional guarantees of 

individual liberty and privacy and therefore entitles the respondent to due process 

protections.”32 Although Daniel was not subjected to an involuntary commitment 

proceeding, he is correct to assert that his emergency detention and subsequent 

hospitalization for evaluation also implicate due process protections. In Wetherhorn, we 

emphasized that the process following initial confinement under an ex parte order under 

AS 47.30.705 must be “expedited,” stating: “The expedited process required for 

involuntary commitment proceedings is aimed at mitigating the infringement of the 

respondent’s liberty rights that begins the moment the respondent is detained 

involuntarily.”33 

Alaska Statutes Title 47 details a mandatory timeline for emergency 

psychiatric detention and evaluation which reflects the legislative concern for the liberty 

interests at stake. Alaska Statute 47.30.710(a) requires that a person who is detained for 

a psychiatric emergency be examined and evaluated by a mental health professional and 

a physician within 24 hours of arrival at an evaluation facility. If, after the initial 

emergency examination, the mental health professional has reason to believe the person 

is “(1) mentally ill and that condition causes the respondent to be gravely disabled or to 

present a likelihood of serious harm to self or others, and (2) is in need of care or 

32	 156 P.3d 371, 379 (Alaska 2007) (citations omitted); see also Addington 

v. Texas, 441 U.S. 418, 425 (1979) (“[C]ivil commitment for any purpose constitutes a 

significant deprivation of liberty that requires due process protection.”). 

33	 Wetherhorn, 156 P.3d at 381. 

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treatment,”34 then AS 47.30.710(b) permits the mental health professional to arrange for 

the hospitalization of the person for evaluation on “an emergency basis.” 

In response to Daniel’s argument that there was no on-going psychiatric 

emergency, we note that he does not challenge his initial emergency detention by the 

police officer. Less than seven hours passed between the initial detention and the 

issuance of the evaluation order. Daniel was transported to API and admitted within four 

hours of the issuance of the order. The psychiatric personnel who filed the petition for 

evaluation stated under oath that Daniel continued to present a threat of harm. Other 

than the fact of being in custody, there is nothing in the record to indicate that the initial 

emergency had abated before the issuance of the evaluation order. Based on 

AS 47.30.710(b)’s provision for hospitalization for a 72-hour evaluation on “an 

emergency basis,” the legislature clearly envisioned that a psychiatric emergency could 

continue past the initial emergency detention. Daniel’s evaluation order was 

appropriately issued on an emergency basis under AS 47.30.710(b). 

The 72-hour hospitalization for evaluation on an emergency basis must be 

approved by a judicial officer via an “ex parte order authorizing hospitalization for 

evaluation.”35 After receiving a proper order, the evaluation facility “shall accept the 

order and the respondent for an evaluation period not to exceed 72 hours.”36 The 

evaluation facility must “promptly notify the court of the date and time” of the person’s 

arrival in order to ensure that a full 30-day commitment hearing is held, if needed, 

34 AS 47.30.710(b). In Wetherhorn, we concluded that the state’s involuntary 

commitment statutes satisfy due process if they are construed to require a showing that 

a respondent is both (1) mentally ill and (2) in danger of harming himself or others or 

unable to live safely outside a controlled environment. Wetherhorn, 156 P.3d at 384. 

35 AS 47.30.710(b). 

36 AS 47.30.715. 

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“within 72 hours” of the person’s arrival. 37 “If at any time in the course of the 72-hour 

period the mental health professionals conducting the evaluation determine that the 

respondent does not meet the standards for commitment . . . , the respondent shall be 

discharged from the facility . . . .”38 

The result of this statutory framework is that a person in Daniel’s position 

is given an initial evaluation within 24 hours. If the mental health professional 

determines that further evaluation is necessary, the statutory structure then ensures that 

a judicial officer will review the probable cause justifying the initial emergency detention 

as well as the justification for additional emergency hospitalization and evaluation.39 

This second evaluation must be completed within 72 hours and followed by the release 

of the respondent or a 30-day commitment hearing with extensive procedural 

protections.40 We conclude that the emergency psychiatric detention and evaluation 

statutes applied in Daniel’s case satisfy Wetherhorn’s requirements because they provide 

for an expedited process that is appropriately protective of the respondent’s liberty 

interests and that avoids unnecessarily prolonging the respondent’s emergency detention. 

37 Id. 

38 AS 47.30.720. 

39 See AS 47.30.705 (allowing for emergency psychiatric detention and 

evaluation of a person when a peace officer, a psychiatrist or physician, or a clinical 

psychologist “has probable cause to believe that [the] person is gravely disabled or is 

suffering from mental illness and is likely to cause serious harm to self or others of such 

immediate nature that considerations of safety do not allow initiation of involuntary 

commitment procedures set out in AS 47.30.700”). 

40 See AS 47.30.735 (establishing the procedures and standards for 30-day 

commitments). 

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2.	 The Mathews v. Eldridge test applies to Daniel’s due process 

claim regardless of the existence of an emergency situation. 

In analyzing Daniel’s due process claim, we apply the foundational test 

from Mathews v. Eldridge. 

41 Daniel disputes the applicability of the Mathews v. Eldridge 

test. He argues that we should not reach the Mathews v. Eldridge analysis in this case 

because due process mandates a per se rule of notice and a hearing before deprivation 

absent an emergency situation, and that in this case there was no emergency to justify the 

lack of prior notice and a hearing. We disagree that the application of the Mathews v. 

Eldridge analysis depends on the existence of an emergency. 

Daniel cites to the recent decision of this court in Patrick v. Municipality 

of Anchorage, Anchorage Transportation Commission for the proposition that a party 

is automatically “entitled to some form of hearing appropriate to the circumstances 

before revocation, absent an emergency situation or a public safety concern requiring 

summary action.” 42 Even though there was no emergency situation in Patrick, we still 

applied the Mathews v. Eldridge balancing test: 

41 424 U.S. 319, 334-35 (1976) (announcing the test for due process 

deprivations under the federal constitution). We described the Mathews test as 

“instructive” when interpreting the requirements of due process under the Alaska 

Constitution in City of Homer v. State, Department of Natural Resources, 566 P.2d 1314, 

1319 (Alaska 1977), and we recently stated in Patrick v. Municipality of Anchorage, 

Anchorage Transportation Commission, 305 P.3d 292, 299 (Alaska 2013), that “[w]e 

look to the [Mathews test] to determine the requirements of due process.” 

42 305 P.3d at 299 (emphasis in original) (footnote omitted). 

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Due process does not require any specific type of hearing. 

The necessary opportunity to be heard depends on the nature 

of the case; it is “not fixed in form.” We look to the test set 

forth by the United States Supreme Court in Mathews v. 

[ ] Eldridge to determine the requirements of due process. 43

Daniel also cites to Zinermon v. Burch where the U.S. Supreme Court similarly stated 

that “[d]ue process . . . is a flexible concept that varies with the particular situation” and 

applied the Mathews v. Eldridge test in a civil commitment case.44 

Whether or not there was an emergency situation at the time of the 

evaluation order, our precedent dictates that the Mathews v. Eldridge test applies in the 

due process analysis. 

3.	 The Mathews v. Eldridge factors weigh against Daniel’s due 

process claim. 

In order to determine if Daniel’s hospitalization for evaluation complied 

with due process, we apply the Mathews v. Eldridge due process balancing test: 

[The] identification of the specific dictates of due process 

generally requires consideration of three distinct factors: 

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 

43 Id. (footnotes omitted). 

44 494 U.S. 113, 127 (1990). 

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involved and the fiscal and administrative burdens that the 

additional or substitute procedural requirement would 

[ ] entail. 45

In applying this test, we conclude that Daniel’s procedural due process 

rights were not violated, that the State’s emergency detention and evaluation procedures 

worked efficiently and effectively, and that the additional protections that Daniel 

advocates would likely lengthen unnecessary confinement. 

In characterizing the “private interest” affected pursuant to the first 

Mathews v. Eldridge factor, the State distinguishes between the purpose and meaning of 

a 72-hour evaluation order and a 30-day involuntary commitment order. The State notes 

that a 30-day commitment order indicates that a court has found by clear and convincing 

evidence that the respondent is mentally ill and a danger to himself or others, or is 

gravely disabled.46 The State argues that the purpose of a 72-hour evaluation order, on 

the other hand, is to obtain a professional medical opinion on whether commitment is 

necessary and does not mean that a court has definitely ruled on a respondent’s 

condition. The State asserts that the private interest at stake in this case is not freedom 

from confinement since Daniel does not challenge his initial emergency detention, but 

rather Daniel’s interest in not being subjected to further emergency psychiatric 

evaluation under a 72-hour evaluation order. 

45 Mathews, 424 U.S. at 334-35. 

46 See In re Joan K., 273 P.3d 594, 598 (Alaska 2012) (“To involuntarily 

commit someone to a treatment facility for up to 30 days, a court must first find, by clear 

and convincing evidence, that the person ‘is mentally ill and as a result is likely to cause 

harm to [self] or others or is gravely disabled.’ ” (alteration in original) (quoting 

AS 47.30.735(c))). 

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In Wetherhorn, we recognized that the “infringement of the respondent’s 

liberty rights . . . begins the moment the respondent is detained involuntarily.”47 We 

decline to parse the magnitude of the liberty interest at stake in a 72-hour evaluation that 

followed from an uncontested emergency detention. But we recognize that Daniel 

himself has an interest in an accurate and expedited emergency evaluation and prompt 

judicial review of his emergency detention and evaluation. 

The reasoning of the Washington Supreme Court in In re Harris48 is helpful 

in considering the private interest at stake in a psychiatric emergency as well as the 

practical effects of Daniel’s due process argument in emergency situations. The court 

addressed the constitutionality of the involuntary detention provisions contained in a 

Washington statute that permitted the 72-hour detention of a person who presented a 

“likelihood of serious harm to others or himself.”49 The Washington court addressed the 

statutory requirement of “ ‘imminent danger’ for temporary emergency detentions.”50 

The court recognized that “the potential deprivation of liberty is great.”51 But the court 

also noted “the practical effect of being placed in the hospital will usually eliminate the 

‘imminence’ of one’s dangerousness.”52 It concluded: “If we were to require ‘imminent 

danger’ as a requirement of continued commitment, we would be creating a standard that 

47 Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 381 (Alaska 2007).
 

48 654 P.2d 109 (Wash. 1982).
 

49
 Id. at 110 (quoting a Washington statute that has since been revised). 

50 Id. at 113 (same). 

51 Id. 

52 Id. 

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(in many cases) would invalidate commitment as soon as it occurs.”53 Similarly, if this 

court found that the emergency that justified Daniel’s initial detention was abated simply 

by the fact of custody, then emergency detention would often be invalidated as soon as 

it occurred without a full psychiatric evaluation of the respondent’s condition, need for 

treatment, and “likelihood of serious harm to self or others.”54 

In applying the second Mathews v. Eldridge factor, we conclude that the 

risk of an erroneous deprivation through the procedures used is relatively low. The 

evaluation petition was filed by disinterested medical staff after determining that Daniel 

was in need of a full psychiatric evaluation. A neutral magistrate judge promptly 

reviewed the petition and determined that it stated adequate cause to support an 

evaluation. 55 We recognize that preliminary determinations may be incorrect and result 

53 Id. 

54 AS 47.30.710(b). 

55 Although neither party briefs the applicability of the Fourth Amendment 

protection against unreasonable seizures in the context of emergency psychiatric 

detention and evaluation, we note that federal precedent exists applying the Fourth 

Amendment to involuntary hospitalization of persons for psychiatric reasons. See Ahern 

v. O’Donnell, 109 F.3d 809, 815-16 (1st Cir. 1997) (concluding that seizing an 

individual for involuntary hospitalization pursuant to state statute required probable 

cause); Villanova v. Abrams, 972 F.2d 792, 795 (7th Cir. 1992) (“A civil commitment 

is a seizure, and may be made only upon probable cause . . . .”); United States v. Shields, 

522 F. Supp. 2d 317, 332 (D. Mass. 2007) (“It is well-settled that the Fourth Amendment 

protection against unreasonable seizures applies to the involuntary hospitalization of 

persons for psychiatric reasons.”). The United States Supreme Court has determined that 

“[w]hen the stakes are . . . high, the detached judgment of a neutral magistrate is essential 

if the Fourth Amendment is to furnish meaningful protection from unfounded 

interference with liberty.” Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (“[T]he Fourth 

Amendment requires a judicial determination of probable cause as a prerequisite to 

extended restraint of liberty following arrest.”). Absent emergency or extraordinary 

(continued...) 

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in unnecessary 72-hour evaluations. But the evaluation period may also not last a full 

72 hours, and the result of the evaluation may be immediate freedom. This is in fact 

what happened to Daniel. 

The record shows that the State complied with the statutory requirements 

for emergency detention and evaluation56 and that Daniel would have received a postdeprivation hearing with extensive procedural protections57 within the time required by 

statute had a commitment petition been filed.58 We agree with the State’s position that 

a prompt evaluation under an expeditiously issued ex parte order is more likely to result 

in the prompt release of a respondent who does not meet the standards for commitment 

than a procedure under which a full psychiatric evaluation does not occur until after a 

contested hearing with counsel. 59 As a practical matter, a pre-evaluation hearing could 

not occur as quickly as an ex parte order and would likely lengthen a respondent’s 

55(...continued) 

circumstances, the probable cause determination should occur within 48 hours of 

detention. Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). 

56 AS 47.30.715 provides: 

When a facility receives a proper order for evaluation, it shall 

accept the order and the respondent for an evaluation period 

not to exceed 72 hours. . . . The court shall set a date, time, 

and place for a 30-day commitment hearing, to be held if 

needed within 72 hours after the respondent’s arrival . . . . 

57 See AS 47.30.730-.735. 

58 The superior court scheduled a 30-day commitment hearing to be held two 

days after Daniel’s initial detention, but Daniel was released prior to the scheduled time. 

59 Because Daniel did not brief the Mathews v. Eldridge test, the court was not 

presented with proposed alternative procedures to an ex parte evaluation order. At oral 

argument, however, Daniel argued that due process at the very least required a hearing 

with appointed counsel prior to the issuance of a 72-hour evaluation order. 

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unnecessary confinement beyond 72 hours. We conclude that this would defeat the 

legislative scheme and could result in a greater deprivation of an individual’s liberty than 

the expedited emergency evaluation and judicial review process now in place. 

In applying the third Mathews v. Eldridge factor, which looks to the 

government’s interest and the burdens of an alternative procedure, we agree with the 

State that it has a strong interest in obtaining a prompt psychiatric evaluation of a 

respondent who has been detained on an emergency basis to determine if civil 

commitment is warranted.60 We recognize the practical importance of evaluation orders 

for the functioning of the civil commitment system and the necessity of providing the 

court in a subsequent 30-day commitment hearing with the opinion of an informed health 

professional. 

We conclude that a pre-evaluation hearing with appointed counsel would 

provide little additional benefit to the respondent. Sufficient due process is provided by 

the statutory requirements for a speedy evaluation and either release or subsequent court 

hearing.61 We therefore conclude that Daniel’s right to due process was not violated. 

V. CONCLUSION 

We AFFIRM the superior court’s evaluation order and REMAND for 

correction of the title of the order in accordance with this opinion. 

60 In accordance with the applicable Alaska Statutes, Daniel’s emergency 

detention was reviewed by a detached and neutral magistrate less than eight hours after 

his initial detention. As a practical matter, requiring an adversarial hearing prior to 

judicial review of an emergency psychiatric detention would likely entail that a person 

in Daniel’s position would be detained longer than 48 hours before a judicial 

determination of probable cause could be made. This would adversely affect the State’s 

interest in promptly ensuring that persons in Daniel’s position are not detained without 

probable cause. 

See AS 47.30.700-.735. 

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