                                                               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 ofR. 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. ofD.F.F., 172 Wn.2d 37, 256 P.3d
357 (2011).
No. 34045-7-III
Involuntary Treatment ofL. 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 Mills-

George, 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 ofL. 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 ofL. 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 ofL. 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 ofLabor & 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 ofL. 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 ofSeattle 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 ofL. 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 ofL. 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.
                                                                                         j
WE CONCUR:




                                              9
