FILED 

DECEMBER 22, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

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 order committing him 

for involuntary mental health treatment. He argues the trial court improperly commented 

on the evidence in violation of article IV, section 16 of the Washington Constitution when 

it gave a jury instruction based on RCW 71.05.285. Because the instruction was based on 

substantive law, not legislative intent-as was the case in In re Detention of R. W, 98 Wn. 

App. 140, 988 P.2d 1034 (1999)-we hold the instruction was not constitutionally 

prohibited and affirm. 

t We grant appellant's motion to change the caption and all references in the 

opinion from his name to his initials. See In re Det. of D.F.F., 172 Wn.2d 3 7, 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 evaluated by 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 treatment by 180 days. They 

alleged he was gravely disabled as a result of a 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 of the admissions were because L.T.S. stopped taking 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 of not 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. 

1 LRA treatment is a court-ordered program of individualized 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. 

2 
No. 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 to jail, 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 that he does not have a mental 

illness and does not consider himself gravely disabled. 

In instruction number 10, the trial court instructed the jury to give "great weight" 

to L.T.S.'s history of decompensation and discontinuation of treatment resulting in 

hospitalization or law enforcement intervention. Clerk's Papers (CP) at 187. L.T.S. did 

not object to this instruction. 

The jury 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 LRA treatment. The trial court 

committed L.T.S. for 180 days ofLRA treatment. L.T.S. appeals. 

ANALYSIS 

A. THE APPEAL IS NOT MOOT 

L.T.S.'s 180-day term of involuntary commitment term has expired. However, 

L.T.S. argues this case is not moot because the involuntary commitment order may have 

3 
No. 34045-7-III 

Involuntary Treatment of L. TS. 

adverse consequences on him in future commitment proceedings and is also a matter of 

continuing and substantial public interest. The State does not argue that this case is moot. 

"An individual's release from detention does not render an appeal moot where 

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 of commitment entered up to three years before the current 

commitment hearing becomes a part of the evidence against a person seeking denial of a 

petition for commitment." MK., 168 Wn. App. at 626. In other words, a trial court 

presiding over future involuntary commitment hearings may consider L.T.S. 's prior 

involuntarily commitment orders when making its commitment determination. Id. at 629. 

Because involuntary commitment orders have adverse consequences in future 

commitment proceedings, L. T. S.' s appeal is not moot despite the fact that the term of his 

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 

gave jury instruction 10, thus violating article IV, section 16 of the Washington 

Constitution.2 Specifically, L.T.S. argues the trial court commented on the evidence 

2 Although L.T.S. did not object to instruction 10 at trial, "[b]ecause the 

4 
No. 34045-7-III 

Involuntary Treatment of L. TS. 

when it instructed the jury to give "great weight" to his history of decompensation and 

discontinuation of treatment resulting in hospitalization or law enforcement intervention. 

This court reviews whether a jury instruction 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 of the Washington Constitution provides that "[j]udges shall 

not charge juries with respect to matters of fact, nor comment thereon, but shall declare 

the law." "Because the jury is the sole judge of the weight of the testimony, a trial court 

violates this prohibition when it instructs the jury as to the weight that should be given 

certain evidence." R. W, 98 Wn. App. at 144. 

"[ A ]n instruction which does no more than accurately state the law pertaining to an 

issue does not constitute an impermissible comment on the evidence by the trial judge . 

under Const. art. 4, § 16." Hamilton v. Dep't of Labor & Indus., 111 Wn.2d 569,571, 

761 P.2d 618 (1988). "An impermissible comment is one which conveys to the jury a 

judge's personal attitudes toward the merits of the case or allows the jury to infer from 

what the judge said or did not say that the judge personally believed or disbelieved the 

particular testimony in question." Id. 

constitution expressly prohibits any judicial comment on the evidence, a claimed error 

based upon such a comment involves a manifest constitutional error that may be 

challenged for the first time on appeal." State v. Besabe, 166 Wn. App. 872, 880, 271 

5 
No. 34045-7-III 

Involuntary Treatment of L. TS. 

In Hamilton, the trial court instructed the jury to give "' special consideration'" to 

the opinion of the plaintiffs attending physician. Id. at 570. On appeal, the State argued 

that the instruction was an unconstitutional judicial comment on the evidence. Id. In 

rejecting the State's argument, the Hamilton court noted the instruction was not a 

personal opinion of the trial judge but instead stated a long-standing rule oflaw. Id. at 

571. 

In City of Seattle v. Smiley, the city of Seattle charged the defendant with 

prostitution loitering. 41 Wn. App. 189, 190, 702 P.2d 1206 (1985). The trial court 

instructed the jury that "' 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 of the law and did not suggest the 

judge's personal attitude toward the merits of the case. Id. at 192. 

P.3d 387 (2012). 

6 
No. 34045-7-111 

Involuntary Treatment of L. T.S. 

In contrast, in R. W, doctors at Western State Hospital petitioned the court to 

involuntarily commit R.W. to inpatient treatment for 90 days. R. W, 98 Wn. App. at 142. 

The trial court instructed the jury that 

Before the respondent can be detained for a period 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 of the 

respondent or others. 

A prior history of decompensation leading to repeated hospitalizations or 

law enforcement interventions should be given great weight 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 the jury 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 

of legislative intent lacks operative force in itself, the R. W court held that it was not 

substantive law and could not be used to justify the trial court's instruction. 3 Id. at 145. 

3 The R. W court noted the instruction was also similar to RCW 71.05.285 (the 

7 
No. 34045-7-III 

Involuntary Treatment of L. TS. 

Here, the trial court gave instruction 10, which instructed the jury that 

[i]n determining whether an involuntary commitment is appropriate, 

great weight shall be given to evidence of a prior history or pattern of 

decompensation and discontinuation of treatment resulting in: ( 1) Repeated 

hospitalizations; or (2) repeated peace officer interventions resulting in 

criminal charges, diversion programs, or jail admissions. Such evidence 

may be used to provide a factual basis for concluding t1'at the individual 

would not receive, if released, 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 given to evidence of a 

prior history or pattern of decompensation and discontinuation of treatment 

resulting in: ( 1) Repeated hospitalizations; or (2) repeated peace officer 

interventions resulting in juvenile offenses, criminal charges, diversion 

programs, or jail admissions. Such evidence may be used to provide a 

factual basis for concluding that the individual would not receive, if 

released, such care as is essential for his or her health or safety. 

statute at issue in this case), but then stated, "Both parties 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 of continued 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 continued LRA treatment. 

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 well as LRA 

commitment. See LA ws OF 2001, ch. 12, § 1. 

8 
No. 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 of substantive law. In 

giving the instruction, the trial court did not convey its own personal belief that the jury 

should give "great weight" to L.T.S. 's prior history of decompensation and 

discontinuation of treatment. Rather, RCW 71.05.285 itself required the jury to 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: j 

9