                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                     FILED
In Re: Involuntary Hospitalization of B.N.,                                          May 3, 2013

Respondent Below, Petitioner                                                   RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA


No. 12-0657 (Mercer County 12-MH-56)

                               MEMORANDUM DECISION

       Petitioner B.N.,1 by David B. Kelley, his attorney, appeals the order of the Mental Hygiene
Commissioner of Mercer County committing him to Mildred Mitchell Bateman Hospital for
examination upon a finding of probable cause that petitioner was likely to harm himself or others.
There is no respondent.2

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds that petitioner’s appeal is moot. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

        On March 18, 2012, Jessica N., petitioner’s daughter, filed an application pursuant to West
Virginia Code § 27-5-2 for the commitment of petitioner for a mental health examination. As part
of the application, Jessica N. alleged that petitioner made two suicide attempts and attacked both
herself and her mother, petitioner’s wife. Jessica N. certified that she believed petitioner to be
mentally ill and likely to harm himself or others.

       Based on Jessica N.’s application, a probable cause hearing was scheduled for March 19,
2012. Petitioner’s mental health examination occurred at the Princeton Community Hospital on
March 18, 2012.3

    1
  Because of the need to discuss his mental condition, petitioner is referred to only by his initials.
See Markey v. Wachtel, 164 W.Va. 45, 47 n. 2, 264 S.E.2d 437, 439 n. 2 (1979).
2
  The person making the application for commitment for a mental health examination was
petitioner’s daughter, Jessica N. However, by a prior order entered November 1, 2012, this Court
determined that on appeal, “there is no respondent and no response brief shall be filed.”
3
  According to Jessica N., petitioner was already at the Princeton Community Hospital because he
had been hospitalized. Jessica N. indicated that petitioner was in need of medical care because of a
physical condition.
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        In the Certificate of Licensed Examiner, the mental health professional reported she
received information from petitioner, family members, and a Deputy Coulter.4 She also listened
“to time/dated recordings of [petitioner] voicing s[uicidal] i[deation] today.” She opined that
petitioner was mentally ill and likely to harm himself or others. The mental health professional
concluded that “[petitioner] should be committed for further evaluation pursuant to [West Virginia
Code] § 27-5-3.”5 Less restrictive alternatives were not being attempted because: “P[atien]t not
agreeable.”

       In his order directing petitioner’s commitment for examination at Mildred Mitchell
Bateman Hospital, the mental hygiene commissioner found that petitioner was suffering from a
mental illness and that he was likely to harm himself or others. The commissioner based his
finding of probable cause on the following specific facts: “[Petitioner]’s behavior has suddenly
become extremely violent. He is threatening to kill family members and reportedly attacked one or
more; he is expressing an intent to kill himself and reportedly made a couple of attempts. He shows
some religious ideation and reportedly hasn’t eaten in three days.”

       On appeal, petitioner asserts that at the probable cause hearing, the mental health
professional testified on cross-examination that petitioner was semi-cooperative and very lucid,
and Jessica N. testified that she has been estranged from petitioner for some time and that “Dad has
always hated me.” Petitioner argues that it is violative of his due process rights that he is unable to
show how effective his counsel’s cross-examinations of the mental health professional and Jessica
N. were because neither West Virginia Code § 27-5-2 nor West Virginia Code § 27-5-3 required
the probable cause hearing to be recorded. Petitioner states that after the examination pursuant to
West Virginia Code § 27-5-3, he was released and is now back living at his residence at Princeton,
West Virginia.

        “‘Moot questions or abstract propositions, the decision of which would avail nothing in the
determination of controverted rights of persons or of property, are not properly cognizable by a
court.’ Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).” Syl. Pt. 1, State
ex rel. McCabe v. Seifert, 220 W.Va. 79, 640 S.E.2d 142 (2006). Although his mental hygiene
matter concluded without proceeding to a final commitment hearing,6 petitioner pursues an appeal


4
  According to the mental health professional, both petitioner’s wife and Deputy Coulter reported
that he had been threatening to kill himself. Jessica N. had indicated on the application for
petitioner’s commitment that Deputy Coulter had prepared a police report. The police report is not
part of the record on appeal.
5
  West Virginia Code § 27-5-3 governs the involuntary hospitalization of a mental hygiene
respondent for further examination (seven to ten days).
6
  After a final commitment hearing, which is required to be recorded pursuant to West Virginia
Code § 27-5-4(j)(4), a mental hygiene respondent may be hospitalized for an indeterminate period
(two years, unless extended) or six months on a temporary observatory basis. See W.Va. Code §§
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of the mental hygiene commissioner’s order because of two collateral consequences of the order:
(1) his placement in the central state mental health registry pursuant to West Virginia Code
61-7A-3; and (2) not being able to possess firearms pursuant to West Virginia Code § 61-7-7(a)(4).

        “Three factors to be considered in deciding whether to address technically moot issues are
as follows: first, the court will determine whether sufficient collateral consequences will result
from determination of the questions presented so as to justify relief; second, while technically
moot in the immediate context, questions of great public interest may nevertheless be addressed
for the future guidance of the bar and of the public; and third, issues which may be repeatedly
presented to the trial court, yet escape review at the appellate level because of their fleeting and
determinate nature, may appropriately be decided.” See Syl. Pt. 1, Israel v. Secondary Schools
Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989). Considering the third factor first, if
a mental hygiene respondent is released following the examination pursuant to West Virginia
Code § 27-5-3 without the need for a final commitment hearing, the issue of his being committed
pursuant to West Virginia Code § 27-5-3 may escape appellate review because of its determinate
nature.

         However, the case at bar fails to meet the first two factors set forth in Israel for petitioner’s
appeal to go forward despite the case being moot. First, placement in the central state mental health
registry and not being able to possess firearms are insufficient collateral consequences as to justify
relief. This is so because of West Virginia Code § 61-7A-5 which allows a previously committed
person to petition to be taken off the registry and to have his right to possess a firearm restored.
Second, because West Virginia Code § 61-7A-5 allows persons who have been involuntarily
committed to petition to have their firearm rights restored, this case, although understandably
important to petitioner, does not present any questions of great public interest that must be decided
for the guidance of the bar and the public. Therefore, after careful consideration, this Court
dismisses as moot petitioner’s appeal of the mental hygiene commissioner’s order directing
petitioner’s involuntary hospitalization for examination pursuant to West Virginia Code § 27-5-3.

                                                                                    Dismissed as Moot.


ISSUED: May 3, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II


27-5-4(l)(1) and (4).

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