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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 Psychiatric Rights, Inc., Anchorage, for Appellant. Robert H. Schmidt, Law Offices of Robert Schmidt, 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 thewoman 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- 7078Seacliff 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- 7078IV. 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- 7078weighed 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- 7078master 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- 7 078This 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 equivocal 22 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- 7 078stale. 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- 7 078information from confidential informants 26 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- 707 8