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@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

In the Matter of the Necessity	 

for the Hospitalization of	 

HEATHER R.	 

) 

) Supreme Court No. S-15793 

Superior Court No. 3AN-14-02936 PR 

O P I N I O N 

No. 7078 – January 29, 2016 

) 

) 

) 

) 

) 

) 

) 

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

Judicial District, Anchorage, Paul E. Olson, Judge. 

Appearances: James B. Gottstein, Law Project for 

PsychiatricRights,Inc.,Anchorage,forAppellant. RobertH. 

Schmidt, LawOffices of RobertSchmidt, PC, Anchorage, for 

Appellee. Laura Fox, Assistant Attorney General, 

Anchorage, and Craig W. Richards, Attorney General, 

Juneau, for Amicus Curiae State of Alaska. 

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

Justices. [Winfree, Justice, not participating.] 

BOLGER, Justice. 

I. INTRODUCTION 

Severalmembers ofacondominiumhomeowners associationpetitionedthe 

superior court to order a woman who owned a condominium in the association to 

undergo an involuntary 72-hour psychiatric examination. After conducting a statutorily 

required ex parte screening investigation, which did not include an interview with the 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

woman in question, the superior court master determined that there was probable cause 

to believe that she was mentally ill and presented a likelihood of serious harm to others. 

The woman now appeals the evaluation order, claiming that the ex parte investigation 

violated due process and that the master failed to properly conduct the statutorily 

required screening investigation. Although this appeal is technically moot, we reach the 

merits of these claims under the public interest exception. We vacate the evaluation order 

because the superior court master failed to conduct the interview as part of the screening 

investigation required by statute; we do not reach the due process question. 

II. FACTS AND PROCEEDINGS 

On December 5, 2014, a petition was filed on behalf of the Seacliff 

Condominium Association (Seacliff) for an order requiring Heather R.,1 the owner of a 

condominium in Seacliff, to undergo an involuntary 72-hour psychiatric evaluation 

pursuant to AS 47.30.700.2 The petition alleged that Heather was a threat to “herself . . . 

and her neighbors” based on “[y]ears of confrontation, threats, aberrant and widely 

swinging behavior suggesting drug use,” including “taking pictures inside people’s 

houses, inability to have normal social interactions, [and] lying [in] wait to confront 

neighbors.” 

Later that day a magistrate judge, acting in the capacity of superior court 

master, held an ex parte evidentiary hearing on the issue of probable cause. The master 

heard testimony on Heather’s behavior from Seacliff’s property manager and four 

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

2 See AS 47.30.700(a) (authorizing an ex parte order requiring respondent 

to undergo psychiatric evaluation if the court finds “probable cause to believe the 

respondent is mentally ill and that condition causes the respondent to be gravely disabled 

or to present a likelihood of serious harm to self or others”); AS 47.30.715 (limiting the 

time a respondent can be held for emergency evaluation to 72 hours). 

-2- 7078
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Seacliff residents. At the conclusion of the hearing, the master determined that there was 

probable cause to believe (1) Heather had a mental illness that was “negatively affecting 

her ability to control her actions” and (2) this presented “a likelihood of harm to other 

people.” The master recommended ordering involuntary hospitalization for a 72-hour 

psychiatric evaluation. The superior court subsequently adopted the master’s 

recommendation. Heather was then taken to the Alaska Psychiatric Institute for 

evaluation, but she was discharged within 72 hours because medical personnel 

determined she did not meet the criteria for continued hospitalization or commitment. 

Heather appealstheevaluation order. Sheargues thattheorder violated due 

process under the U.S. and Alaska Constitutions and that the master failed to conduct a 

statutorily required screening investigation prior to issuing the order. 

III. STANDARD OF REVIEW 

This court applies its independent judgment to questions of law, which 

include mootness issues,3 constitutional questions,4 and statutory construction.5 When 

reviewing questions of law, this court adopts “the rule of law most persuasive in light of 

precedent, reason, and policy.”6 

3 Clark v. State, Dep’t of Corr., 156 P.3d 384, 386 (Alaska 2007). 

4 Garibay v. State, Dep’t of Admin., Div. of Motor Vehicles, 341 P.3d 446, 

448 (Alaska 2014) (quoting Alvarez v. State, Dep’t of Admin., Div. of Motor Vehicles, 

249 P.3d 286, 290-91 (Alaska 2011)). 

5 Alaska Conservation Found. v. Pebble Ltd. P’ship, 350 P.3d 273, 279 

(Alaska 2015). 

6 Nunamta Aulukestai v. State, Dep’t of Natural Res., 351 P.3d 1041, 1052 

(Alaska 2015) (quoting J.P. v. Anchorage Sch. Dist., 260 P.3d 285, 289 (Alaska 2011)) 

(internal quotation marks omitted). 

-3- 7078
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IV.	 DISCUSSION 

A.	 Although Heather’s Appeal Is Now Moot, We Apply The Public 

Interest Exception To Reach The Merits Of Her 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.”7 Appeals from 

evaluation orders are moot after the commitment period has expired.8 However, we will 

consider a moot claim “if it falls within the public interest exception to the mootness 

doctrine.”9 We consider three factors in determining whether the public interest 

exception applies to an otherwise moot claim: “(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.”10 No one 

individual factor is dispositive; “rather, we use our discretion to determine whether the 

public interest dictates that immediate review of a moot issue is appropriate.”11 

We recently applied the public interest exception to another due process 

claim arising from an ex parte 72-hour involuntary evaluation order. In In re Daniel G. 

we concluded that all three factors considered in the public interest exception analysis 

7 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)) (internal quotation marks omitted). 

8 Id. 

9 Id. 

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

532, 536 (Alaska 2005)) (internal quotation marks omitted). 

11 In re Daniel G., 320 P.3d 262, 267 (Alaska 2014) (quoting Fairbanks Fire 

Fighters Ass’n, 48 P.3d at 1168). 

-4-	 7078
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

weighed in favor of reviewing the petitioner’s claims.12 First, the disputed issues were 

capable of repetition because they did “not depend heavily on [the petitioner’s] unique 

facts” and would “arise[] every time that an evaluation petition is filed under 

AS 47.30.710(b).”13 Second, “due process challenges to evaluation orders . . . will 

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

have long since expired before an appeal can be heard.”14 And third, “the scope and 

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

members of the public” were issues of significant importance to the public interest.15 

All of these factors similarly favor review here, and Heather’s statutory 

claim is sufficiently distinct from that in Daniel G. to warrant separate review. 

B.	 The Screening Investigation Statute Required The Master To 

Interview Heather If Reasonably Possible. 

Heather argues that the master violated AS 47.30.700 because he failed to conduct 

the required screening investigation before he issued the evaluation order.16 Because the 

12	 Id. at 267-68. 

13 Id. at 268. An evaluation petition filed under AS 47.30.710(b), contested 

in In re Daniel G., is nearly identical to the petition under AS 47.30.700(a), contested 

here, except that the former must be sought by a mental health professional, while the 

latter can be sought by “any adult.” Compare AS 47.30.710(b) (“[T]he mental health 

professional shall apply for an ex parte order authorizing hospitalization for 

evaluation.”), with AS 47.30.700(a) (“Upon petition of any adult,” a judge may issue an 

ex parte order under qualifying circumstances). 

14 In re Daniel G., 320 P.3d at 268. 

15 Id. 

16 We recognize that “an issue raised for the first time in a reply brief is 

deemed to have been waived.” Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 326 

(Alaska 2007). However, while Heather did not explicitly argue until her reply brief that 

(continued...) 

-5-	 7078
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

master failed to interview Heather as part of the screening investigation, in the absence 

of any indication that it was not reasonably possible to do so, we agree that the master 

failed to properly conduct the screening investigation required by AS 47.30.700.17 

Alaska Statute 47.30.700 requires a superior court to “conduct a screening 

investigation or direct a local mental health professional [to conduct such an 

investigation]” before it may issue an ex parte 72-hour involuntary evaluation order.18 

The statute defines “screening investigation” as 

the investigation and review of facts that have been alleged 

to warrant emergency examination or treatment, including 

interviews with the persons making the allegations, any other 

significant witnesses who can readily be contacted for 

interviews, and, if possible, the respondent, and an 

investigation and evaluation of the reliability and credibility 

of persons providing information or making allegations.[19] 

16 (...continued) 

the hearing did not meet the statutory definition of a screening investigation, we believe 

that she adequately preserved this issue for our review on appeal by raising a general 

challenge to the screening investigation in her initial brief. While she did not explain 

until her reply brief why the hearing should not be considered a screening investigation 

as defined by AS 47.30.915(19), her opening brief sufficiently stated her general claim 

that the master did not hold a screening investigation that conformed with statutory 

requirements. Cf. id. at 327 (holding that a claim raised very generally in the appellant’s 

opening brief and then stated more precisely in the reply brief was not waived). Further, 

Heather’s argument in her reply brief responds to the State’s argument that “the facts of 

a particular case” dictate what is required for a proper “screening investigation.” 

17 Because we vacate the evaluation order on this basis, we do not address the 

other grounds that Heather raises in her brief for vacating the order. 

18 AS 47.30.700(a). 

19 AS 47.30.915(19) (emphasis added). 

-6- 7078
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This definition implies that a screening investigation should omit an 

interview with the respondent only if such an interview would not be reasonably 

possible. For instance, such an interview may not be reasonably possible if the 

respondent is incapacitated or unwilling to be interviewed. However, there is no 

indication in the record before us that the master made any attempt to interview Heather 

or to request a mental health professional to conduct a screening interview.20 Had the 

master made a finding that such an interview was not reasonably possible, our analysis 

likely would change. But the master violated AS 47.30.700 because the master failed to 

interview Heather without any indication that such an interview was not reasonably 

possible. 

Further, this failure to interview Heather as part of the screening 

investigation was not harmless error.21 The evidence presented to the master at the 

hearing was at best only minimally sufficient to support the master’s probable cause 

finding. The master found that the testimony about Heather’s bizarre behavior was 

sufficient to suggest that she suffered from mental illness. But there was no evidence or 

testimony offered at the hearing from anyone qualified to make a mental health 

diagnosis. The master also found that Heather’s illness presented a likelihood of serious 

harmto others, “particularly through an instrumentality that she controls, namely a dog.” 

But the evidence that she had threatened others with her dog was largely equivocal22 or 

20 In this case, the master could have satisfied the statute by providing notice 

of the hearing to Heather and allowing her to appear and testify. 

21 See Alaska R. Civ. P. 61; see also Wyatt v. State, 981 P.2d 109, 112 (Alaska 

1999) (“If the trial court erred in its ruling, we then determine whether the error was 

harmless.”). 

22 The concerns about Heather’s ability to control her dog appear to stem 

(continued...) 

-7- 7078
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

stale.23 As a result, it is likely that the master’s failure to conduct an interview with 

Heather as part of the statutorily required screening investigation had a prejudicial effect 

on the outcome of the hearing.24 

In addition we note that the statute requires the superior court, as part of the 

screening investigation, to “evaluat[e] . . . the reliability and credibility of persons 

providing information or making allegations.”25 This evaluation is especially important 

in cases such as Heather’s, in which the persons alleging mental illness and 

dangerousness are interested parties with only a layperson’s knowledge rather than 

impartial mental health professionals. When petitions for evaluation orders are brought 

by lay people, the superior court can demonstrate that it has conducted this evaluation 

by explicitly making reliability and credibility findings as to the witnesses at the hearing. 

Similar findings are required in the criminal context when warrants are issued based on 

22 (...continued) 

primarily from Heather’s physical strength, not her mental health. For example, one 

witness testified: “[I]t’s a German Shepherd[.] It’s a healthy animal. And she’s not 

healthy enough to control it.” Another observed: “The dog is in a hurry to go to the 

bathroom [and] kind of pulls on her. . . . She starts turning into the wall and pretty soon 

. . . she falls head over heels all the way to the landing. And I know it hurt her.” 

Similarly, another witness expressed concern that Heather was “going to get hurt just by 

the number of times that she’s falling down[] being dragged by the dog.” Finally, 

another noted that Seacliff owners had complained “about the dog and the rope and that 

she doesn’t have control over it.” 

23 One witness testified, for example, that Heather threatened a neighbor with 

her dog “a couple of years ago.” 

24 See, e.g., Klawock Heenya Corp. v. Dawson Constr./Hank’s Excavation, 

778 P.2d 219, 220 (Alaska 1989) (holding that superior court’s exclusion of evidence 

was not harmless error because the other evidence was “flimsy at best”). 

25 AS 47.30.915(19). 

-8- 7078
 
 

 

 

 

 

 

 

 

 

 

information from confidential informants26 and similarly could bolster the reliability of 

a screening investigation. 

V. CONCLUSION 

For the foregoing reasons, we REVERSE AND VACATE the superior 

court’s order authorizing hospitalization for evaluation. 

26 See State v. Jones, 706 P.2d 317, 326 (Alaska1985) (“It is imperative under 

the Alaska Constitution that the magistrate be presented with adequate supporting facts 

so that he can independently test the confidential informant’s basis of knowledge and 

veracity. Only if these requirements are met can a reviewing court be certain that the 

magistrate has fulfilled his constitutional duty to render an independent determination 

that probable cause exists.” (footnote and internal quotation marks omitted)). 

-9- 7078