### FILED DECEMBER 22, 

### 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE In re Involuntary Treatment of ) ) ) ) ) ) ) No. 34045-7-111
L.T.S.t PUBLISHED OPINION

LAWRENCE-BERREY, 

### J.

- L.T.S. appeals the trial court's ordercommittinghim for involuntary mental healthtreatment. He argues the trial court improperly commented
onthe evidence inviolation ofarticle IV, section 16 ofthe Washington Constitution when it gave ajury instructionbased onRCW 71.05.285. Becausethe instruction was based on substantive law, not legislative intent-aswas the case inIn reDetention of R. W, 98 Wn. App. 140, 988 P.2d 1034 (1999)-weholdthe instructionwas not constitutionally prohibited and affirm.



### t We grant appellant's motion to changethe caption and all references inthe opinion from his name tohis initials. See In reDet. of D.F.F., 172 Wn.2d 37, 256 P.3d 357 (2011).No. 34045-7-III Involuntary Treatment of L. TS.
FACTS In January 2016, L.T.S. was receiving outpatient mental health services under a less restrictive alternative (LRA) order, which was set to expire in mid-January. 1 L.T.S.
was evaluatedby Daniel Pitts, an advanced registered nurse practitioner, and Kathy MillsGeorge, a county-designated mental health professional. On January 8, Mr. Pitts and Ms. Mills-George filed a petition to extend L.T.S.'s LRA treatmentby 180 days. They alleged he was gravely disabled as a result ofa mental disorder. The case proceeded to trial. Mr. Pitts testified that L.T.S. had been admitted to impatient treatment nine times due to decompensation in his mental status. He also testified that several ofthe admissions were because L.T.S. stoppedtaking his medications, and that every time L.T.S. stopped taking his medications he ended up in the hospital. Ms. Mills-George testified that L.T.S. had a history ofnot taking his medication and this had led to contact with law enforcement and incarceration. She also testified that L.T.S. decompensated when he discontinued his medications, and this decompensation is what led to contact with law enforcement or hospitalization.

1LRA treatment is a court-orderedprogram ofindividualized treatment in a living arrangement that is less restrictive than inpatient treatment, such as in a residential facility or in the person's own home. See RCW 71.05.020(26); WAC 388-877-0200. 2No. 34045-7-III Involuntary Treatment of L. TS.
L.T.S.'s case manager testified that L.T.S. had a cyclical pattern in which he would be hospitalized, be released, discontinue his medications, be arrested, go tojail, and then go to a psychiatric hospital. The case manager described how L.T.S. decompensated when he was not on his medication, and how this led to hospitalization or incarceration. L.T.S. testified on his own behalf. He testified thathe does not have a mental illness and does not considerhimselfgravely disabled. In instruction number 10, the trial court instructed thejuryto give "greatweight" to L.T.S.'s history ofdecompensation and discontinuation oftreatmentresulting in hospitalization or law enforcement intervention. Clerk's Papers (CP) at 187. L.T.S. did not object to this instruction. Thejury found that L.T.S. had a mental disorder, that he was gravely disabled, and that his and others' best interests would be served by LRAtreatment. Thetrial court committed L.T.S. for 180 days ofLRAtreatment. L.T.S. appeals. ANALYSIS A. THE APPEAL IS NOT MOOT L.T.S.'s 180-day term ofinvoluntary commitmentterm has expired. However, L.T.S. argues this case is not moot because the involuntary commitment order may have

3No. 34045-7-III Involuntary Treatment of L. TS.
adverse consequences onhim in future commitmentproceedings and is also a matter of continuing and substantial public interest. The State does not argue thatthis case is moot. "An individual's release from detention does not render an appeal mootwhere collateral consequences flow from the determination authorizing such detention." In re Det. of MK., 168 Wn. App. 621,626,279 P.3d 897 (2012). Under RCW 71.05.012, .212. and .245, "each order ofcommitment entered up to three years before the current commitment hearing becomes a part ofthe evidence against a person seeking denial ofa petition for commitment." MK., 168 Wn. App. at 626. In otherwords, a trial court presiding over future involuntary commitmenthearings may consider L.T.S.'sprior involuntarily commitment orders when making its commitment determination. Id. at 629. Because involuntary commitment orders have adverse consequences in future commitmentproceedings, L.T.S.'s appeal is not moot despite the fact thatthe term ofhis involuntary treatment has expired. B. ALLEGED JUDICIAL COMMENT ON THE EVIDENCE L.T.S. argues that the trial court improperly commented on the evidence when it gavejury instruction 10, thus violating article IV, section 16 ofthe Washington Constitution.2 Specifically, L.T.S. argues the trial court commented on the evidence

2 Although L.T.S. did not objectto instruction 10 at trial, "[b]ecausethe 4No. 34045-7-III Involuntary Treatment of L. TS.
when it instructed thejuryto give "greatweight" to his history ofdecompensation and discontinuation oftreatment resulting in hospitalization orlaw enforcement intervention. This court reviews whether ajuryinstruction amounts to a comment on the evidence de
novo. State v. Butler, 165 Wn. App. 820, 835, 269 P.3d 315 (2012). Article IV, section 16 ofthe Washington Constitutionprovides that "[j]udges shall not chargejuries with respect to matters offact, nor commentthereon, but shall declare the law." "Because thejury is the solejudge ofthe weight ofthe testimony, a trial court violates this prohibition when it instructs thejury as to the weightthat should be given certain evidence." R. W, 98 Wn. App. at 144. "[

A]n instruction which does no more than accurately state the lawpertaining to an issue does not constitute an impermissible comment on the evidence by the trialjudge
. under Const. art. 4, § 16." Hamilton v. Dep'tof Labor &Indus., 111 Wn.2d 569,571, 761 P.2d 618 (1988). "An impermissible comment is one which conveys to thejury a judge'spersonal attitudes toward the merits ofthe case or allows thejuryto infer from what thejudge said or did not say that thejudgepersonally believed or disbelieved the particulartestimony in question." Id.
constitution expresslyprohibits anyjudicial comment onthe evidence, a claimed error based upon such a comment involves a manifest constitutional errorthat may be challenged for the first time on appeal." State v. Besabe, 166 Wn. App. 872, 880, 271 5No. 34045-7-III Involuntary Treatment of L. TS.
In Hamilton, the trial court instructed thejuryto give "'special consideration'" to the opinion ofthe plaintiffs attending physician. Id. at 570. On appeal, the State argued that the instruction was an unconstitutionaljudicial comment on the evidence. Id. In rejecting the State's argument, the Hamilton court noted the instruction was not a personal opinion ofthe trialjudge but instead stated a long-standing rule oflaw. Id. at 571. In City of Seattle v. Smiley, the city ofSeattle charged the defendant with prostitution loitering. 41 Wn. App. 189, 190, 702 P.2d 1206 (1985). The trial court instructed thejurythat "'the circumstances which may be considered in determining whether the actor intends such prohibited conduct are that he: 1. Repeatedly beckons to ... passersby in conversation; or 2. Repeatedly stops or attempts to stop motor vehicle operators."' Id. at 191 n.2 (quoting former Seattle Municipal Code 12A.10.010 (1973)). The instruction was worded identically to Seattle's prostitution loitering ordinance. Id. at 191. The Smiley court held that the instruction was not an unconstitutional comment on the evidence because it was an accurate statement ofthe law and did not suggest the judge'spersonal attitude toward the merits ofthe case. Id. at 192.

P.3d 387 (2012). 6No. 34045-7-111 Involuntary Treatment of 

### L. T.S.
In contrast, in R. W, doctors at Western State Hospital petitioned the courtto involuntarily commit R.W. to inpatient treatment for 90 days. R. W, 98 Wn. App. at 142. The trial court instructed thejurythat Before the respondent can be detained for aperiod not to exceed 90 days at Western State Hospital, it must be proved by clear, cogent and convincing evidence that no less restrictive treatment is in the best interest ofthe respondent or others. Aprior history of decompensation leading to repeatedhospitalizations or law enforcement interventions shouldbe given greatweight in determining whether a new less restrictive alternative commitment is in the best interest of the respondent or others. Id. at 144. The 

### R. W court held the instruction was an impermissible comment on the evidence because it instructed thejury on the weight to give certain evidence. Id. at 145. The court acknowledged the general rule that an instruction that accurately states the law is not a comment on the evidence. Id. However, the court reasoned that this rule did not apply because the basis for the trial court's instruction was RCW 71.05.012, which was the section headed "Legislative intent and finding." Id. at 144-45. Because a statement oflegislative intent lacks operative force in itself, the R. W court held that it was not substantive law and could not be used tojustifythe trial court's instruction. 3 Id. at 145.

3 The R. W court noted the instruction was also similarto RCW 71.05.285 (the 7No. 34045-7-III Involuntary Treatment of L. TS. Here, the trial court gave instruction 10, which instructed thejurythat [i]n determining whether an involuntary commitment is appropriate, great weight shall be given to evidence ofa priorhistory orpattern of decompensation and discontinuation oftreatmentresulting in: (1) Repeated hospitalizations; or (2) repeated peace officer interventions resulting in criminal charges, diversion programs, orjail admissions. Such evidence may be used to provide a factual basis for concluding t1'at the individual would not receive, ifreleased, such care as is essential for his or her health or safety. CP at 187. RCW 71.05.285 provides that In determining whether an inpatient or less restrictive alternative commitment under the process provided in RCW 71.05.280 and *71.05.320(2) is appropriate, great weight shall be givento evidence ofa prior history or pattern ofdecompensation and discontinuation oftreatment resulting in: (1) Repeated hospitalizations; or (2) repeated peace officer interventions resulting injuvenile offenses, criminal charges, diversion programs, orjail admissions. Such evidence may be used to provide a factual basis for concluding that the individual would notreceive, if released, such care as is essential for his or herhealth or safety.
statute at issue in this case), but then stated, "Bothparties agree that this statute is inapplicable." R. W., 98 Wn. App. at 144 n.2. The R. W. court did not explain why RCW 71.05.285 was inapplicable, but the likely reason was because RCW 71.05.285 at the time only applied "[fl.or the purposes ofcontinued less restrictive alternative commitment." Former RCW 71.05.285 (1997). Thus, the basis for the instruction in R. W. could not have been RCW 71.05.285 because the doctors only petitioned for continued inpatient treatment, and did not petition for continuedLRAtreatment. The legislature amended RCW 71.05.285 expressly in response to the R. W. decision. See S.B. REP. ON S.B. 5048, at 1, 57th Leg., Reg. Sess. (Wash. 2001). The legislature made the statute apply to petitions for inpatient commitment as wellas LRA commitment. See LA

### ws OF 2001, ch. 12, § 1. 8No. 34045-7-III Involuntary Treatment of L. T.S.
Instruction 10 is worded nearly identically to RCW 71.05.285. As in Hamilton and Smiley, and unlike in R. W., the instruction is an accurate statement ofsubstantive law. In giving the instruction, the trial court did not convey its own personal beliefthat thejury should give "great weight" to L.T.S.'spriorhistory ofdecompensation and discontinuation oftreatment. Rather, RCW 71.05.285 itselfrequired thejuryto give great weight to these factors. We conclude the trial court did not unconstitutionally comment
on the evidence by giving the instruction at issue. Affirmed.
Lawrence-Berrey, J. WE CONCUR: 

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