      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      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@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

In the Matter of the Necessity for the         )
Hospitalization of                             )        Supreme Court No. S-15100
                                               )
DANIEL G.                                      )        Superior Court No. 3AN-13-00454 PR
                                               )
                                               )        OPINION
                                               )
                                               )        No. 6862 – February 7, 2014
                                               )


              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Frank A. Pfiffner, Judge.

              Appearances: James B. Gottstein, Law Project for Psychiatric
              Rights, Inc., Anchorage, for Appellant Daniel G. Laura Fox,
              Assistant Attorney General, Anchorage, and Michael C.
              Geraghty, Attorney General, Juneau, for Appellee State of
              Alaska.

              Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger,
              Justices. [Maassen, Justice, not participating.]

              FABE, Chief Justice.


I.    INTRODUCTION
              Daniel G. appeals an ex parte order authorizing a 72-hour psychiatric
evaluation issued after his emergency detention.1 The evaluation personnel determined


      1
              We use a pseudonym to protect Daniel’s privacy.
that Daniel did not meet the statutory criteria for involuntary commitment, and he was
released before the expiration of the 72-hour evaluation period. He argues that the
evaluation order violated his constitutional right to due process because it was issued on
an ex parte basis, without notice and a hearing, while he was safely in protective custody.
The superior court denied Daniel’s motion to vacate the evaluation order as moot in light
of Daniel’s release. We conclude that although Daniel’s appeal is technically moot, the
public interest exception to the mootness doctrine applies, and we reach the merits of his
due process claim. We further conclude that the 72-hour evaluation order and the
statutory evaluation procedures do not violate due process, and we affirm the evaluation
order. But we remand this case to the superior court for correction of the title of the
superior court’s order authorizing Daniel’s hospitalization for evaluation.
II.    FACTS AND PROCEEDINGS
              On the morning of February 26, 2013, a police officer took emergency
custody of Daniel after Daniel’s father reported that Daniel was threatening suicide. At
8:50 a.m. the police officer transported Daniel to the Providence Alaska Medical Center
Psychiatric Emergency Room under AS 47.30.705 and gave the Providence staff a
“Notice of Emergency Detention and Application for Evaluation.”2
              At approximately 3:10 p.m., Providence staff filed a “Petition for
Involuntary Commitment for Evaluation” under AS 47.30.700 and AS 47.30.710, asking
the superior court to authorize detention of Daniel at the Alaska Psychiatric Institute



       2
              AS 47.30.705(a) provides that “[a] peace officer . . . who has probable
cause to believe that a person is gravely disabled or is suffering from mental illness and
is likely to cause serious harm to self or others of such immediate nature that
considerations of safety do not allow initiation of involuntary commitment procedures
set out in AS 47.30.700, may cause the person to be taken into custody and delivered to
the nearest evaluation facility.”

                                           -2-                                       6862

(API) for 72 hours for psychiatric evaluation.3 The petition stated that Daniel had a
history of mental illness with multiple hospitalizations and diagnoses. It proceeded to
detail Daniel’s suicide threats as well as his violent threats against his father. The
petition concluded that Daniel “refuses mental health intervention, has no insight into his
mood problem and requires involuntary hospitalization for his safety.”
              Magistrate Judge Jonathon H. Lack signed the “Order on Petition for
Involuntary Commitment for Evaluation” at 3:45 p.m., which authorized transfer of
Daniel to API for an evaluation period not to exceed 72 hours.4 The order stated that the
trial court had considered the sworn allegations in the petition and found that the
respondent was likely to cause serious harm to himself because the petition alleged that
he was “actively suicidal.”
              The evaluation order required API to have Daniel evaluated by a mental
health professional and a physician within 24 hours of his arrival. Daniel was admitted
to API later that day at 7:29 p.m.
              The next day, on February 27 at 3:03 p.m., Superior Court Judge Frank A.
Pfiffner approved and signed the magistrate judge’s recommended order. The superior



       3
              See AS 47.30.710(b) (authorizing hospitalization if mental health
professional “has reason to believe that the respondent is (1) mentally ill and that
condition causes the respondent to be gravely disabled or to present a likelihood of
serious harm to self or others, and (2) is in need of care or treatment,” and requiring
application for “an ex parte order authorizing hospitalization for evaluation” if no
judicial order has been obtained under AS 47.30.700).
      4
             Because hospitalization for evaluation does not constitute an “involuntary
commitment,” the titles of the court system’s MC-100 and MC-305 forms have been
changed during the pendency of this appeal to accurately reflect the statutory language
of AS 47.30.710. Form MC-100 is now titled “Petition for Hospitalization for
Evaluation.” Form MC-305 is now titled “Order Authorizing Hospitalization for
Evaluation.”

                                           -3-                                       6862

court scheduled a 30-day commitment hearing for February 28 at 1:30 p.m. to be held
if a commitment petition was filed during Daniel’s detention. The superior court gave
Daniel and the Public Defender Agency notice of the scheduled hearing.
              On the morning of February 28, Daniel filed a motion to vacate the order.
Daniel argued before the superior court that (1) the order violated due process because
it was issued ex parte without an emergency justification; (2) the order should not have
been implemented before it was signed by the superior court judge; (3) the order was
issued without a sufficiently searching inquiry; (4) the findings were insufficient to
support the order; (5) the order impermissibly relied on hearsay; and (6) the petition filed
by Providence staff was defective.
              Later the same morning of February 28, at 11:25 a.m., API evaluation
personnel discharged Daniel because they “did not find that [he] met the standards for
commitment specified in AS 47.30.700.”
              A compliance hearing was held that afternoon. The State’s representative
informed the magistrate judge that Daniel had already been discharged. Daniel reminded
the court that he had filed a motion to vacate the order that morning and advised the court
that he did not consider the motion to be moot.
              On March 6 the superior court denied Daniel’s motion to vacate the order,
reasoning that the motion was moot in light of Daniel’s release. Daniel appeals his due
process claim and the denial of his motion to vacate.
III.   STANDARD OF REVIEW
              We consider whether an order of the superior court is appealable de novo.5
“Mootness is a matter of judicial policy and its application is a question of law” that we




       5
              Husseini v. Husseini, 230 P.3d 682, 685 (Alaska 2010).

                                            -4-                                       6862
also review de novo.6 Under de novo review, we apply our “independent judgment to
the interpretation of the Alaska Constitution and statutes.”7 When reviewing a question
de novo, our duty is to adopt “the rule of law that is most persuasive in light of
precedent, reason, and policy.”8
IV.	   DISCUSSION
       A.	    The Denial Of Daniel’s Motion To Vacate The Evaluation Order Was
              Appealable.
              The State argues that Daniel cannot bring this appeal because the evaluation
order is not a final appealable judgment under Appellate Rule 202(a)9 and because
Daniel prevailed below. The State contends that the evaluation order did not resolve a
civil commitment proceeding but specifically contemplated further proceedings in which
the respondent’s mental health status and the necessity of commitment would be litigated
if necessary.10 The language of the order states that “examination and evaluation shall
be completed within 72 hours” and a “petition for a 30-day commitment shall be filed


       6
            In re Joan K., 273 P.3d 594, 595-96 (Alaska 2012) (citing In re Tracy C.,
249 P.3d 1085, 1089 (Alaska 2011)).
       7
             Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007)
(footnotes omitted) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
       8	
              Id.
       9
              “[A]n order must constitute a final judgment, such that it ‘disposes of the
entire case and ends the litigation on its merits,’ for this court to review it on appeal.”
Husseini, 230 P.3d at 687 (quoting Richard v. Boggs, 162 P.3d 629, 633 (Alaska 2007)).
       10
             “The basic thrust of the finality requirement is that the judgment must be
one which disposes of the entire case, ‘. . . one which ends litigation on the merits and
leaves nothing for the court to do but execute the judgment.’ ” Martech Constr. Co. v.
Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1153 (Alaska 1993) (omission in original)
(quoting Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1030
(Alaska 1972)).

                                           -5-	                                      6862

or the respondent shall be released . . . before the end of the 72-hour evaluation period”
in compliance with AS 47.30.715.11 The State argues that no final appealable judgment
exists unless and until an evaluation order is followed by a commitment hearing and a
30-day commitment order.
              In its argument, the State does not address the superior court’s denial of
Daniel’s motion to vacate the evaluation order as a possible basis for appeal, focusing
only on the evaluation order. By contrast, Daniel asserts that the denial of his motion to
vacate ended the litigation and that under this court’s precedent “[a] final, appealable
‘judgment’ is one that, however denominated, ‘disposes of the entire case and ends the
litigation on the merits.’ ”12 Daniel argues that for the purposes of determining finality,
we have emphasized that “the reviewing court should look to the substance and effect,
rather than form, of the rendering court’s judgment.”13 Martech Construction Co. v.
Ogden Environmental Services, Inc., the case relied on by the State, also emphasizes that
“[t]his court should look to the effect of the judgment, rather than the form.”14 Daniel
reasons that after the superior court decided that the motion to vacate was moot, there
was nothing further he could do; therefore, the case is appealable. Daniel took care at
the compliance hearing to state on the record that he did not consider his motion to
vacate to be moot.


       11
              AS 47.30.715 provides that “[w]hen a facility receives a proper order for
evaluation, . . . [t]he facility shall promptly notify the court of the date and time of the
respondent’s arrival. The court shall set a date, time, and place for a 30-day commitment
hearing, to be held if needed within 72 hours after the respondent’s arrival . . . .”
       12
            Denali Fed. Credit Union v. Lange, 924 P.2d 429, 431 (Alaska 1996)
(quoting Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 634 (Alaska 1993)).
       13
              Id. (internal quotation marks omitted).
       14
              852 P.2d at 1153.

                                            -6-                                       6862

                The State’s second argument is that Daniel is not entitled to appeal because
the superior court proceedings resolved in his favor when he was released without being
committed. The State characterizes the evaluation order as an interlocutory order15 and
analogizes the situation to both criminal defendants who are arrested on probable cause
but released without conviction and civil litigants who are denied summary judgment but
win at trial. The State again does not address the denial of Daniel’s motion to vacate the
order.
                Daniel disputes the State’s assertion that he prevailed completely in the end
and the relevance of the State’s analogies. He points out that he was released based on
API’s determination that he did not meet commitment criteria. He argues that the court
never ruled in his favor: the only trial court rulings — the ex parte evaluation order and
the denial of his motion to vacate — were resolved against him.
                We agree with Daniel that the denial of his motion to vacate ended the
litigation below. We also agree with Daniel that because his motion was denied, he did
not prevail completely below. We “look to the effect of the judgment, rather than the
form,”16 and the effect of the denial of Daniel’s motion to vacate was to end litigation in
the trial court and to leave Daniel with no recourse other than appeal to this court. We
therefore conclude that the denial of Daniel’s motion to vacate the evaluation order was
appealable.17


         15
              “A party generally may not appeal a judgment in its favor in order to
challenge an interlocutory order.” Peter A. v. State, Dep’t of Health & Soc. Servs., Office
of Children’s Servs., 146 P.3d 991, 994 (Alaska 2006) (citing Fairbanks Fire Fighters
Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002)).
         16
                Martech, 852 P.2d at 1153.
         17
                The State also argues that AS 47.30.765, which provides “[t]he respondent
                                                                            (continued...)

                                             -7-                                       6862

       B.	    Although This Case Is Now Moot, We Apply The Public Interest
              Exception To Mootness In Order To Reach The Merits Of Daniel’s
              Due Process 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.”18 This court has
deemed appeals related to commitment orders to be moot when the commitment period
has passed.19 But this rule is subject to at least two exceptions: the public interest
exception 20 and the collateral consequences exception.21




       17
        (...continued)
has the right to an appeal from an order of involuntary commitment,” does not give
Daniel a right to appeal because the evaluation order was not “an order of involuntary
commitment.” But Daniel does not base his right to appeal on this statutory provision
and does not address AS 47.30.765 in his briefing.
       18
             Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 380 (Alaska 2007)
(quoting Fairbanks Fire Fighters, 48 P.3d at 1167).
       19
              Id. at 380. Daniel asks this court to reconsider the mootness holding of
Wetherhorn and argues that “people subjected to involuntary commitment orders have
the right to have their appeals heard on the merits, regardless of whether they have
demonstrated collateral consequences or the public interest exception to the mootness
doctrine applies.” Because we apply the public interest exception to reach the merits of
Daniel’s due process claims, we decline to consider overruling Wetherhorn’s general
mootness holding.
      20
            Id. at 380-81; E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1106-07
(Alaska 2009); see also In re Joan K., 273 P.3d 594, 596 (Alaska 2012).
       21
              In re Joan K., 273 P.3d at 597-98.

                                            -8-	                                      6862

              1.       Daniel’s appeal satisfies the public interest exception.
              We “will . . . consider a question otherwise moot if it falls within the public
interest exception to the mootness doctrine.”22 In determining whether the public interest
exception applies, we look to these factors: “(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.”23 “None
of the individual factors is dispositive; rather, we use our discretion to determine whether
the public interest dictates that immediate review of a moot issue is appropriate.” 24
              In E.P. v. Alaska Psychiatric Institute, we applied the public interest
exception when we determined that (1) the questions of statutory interpretation and
procedure did not depend on the appellant’s unique facts and were capable of repetition;
(2) the questions would circumvent review because of the involuntary commitment time
frame; and (3) the questions raised were “important to the public interest” because
involuntary commitment entails a “ ‘massive curtailment of liberty,’ ” and “[t]he
interpretation and scope of involuntary commitment statutes affect the power of the state
to curtail the liberty of any member of the public.”25 All three factors weigh in favor of
review in this case.




       22
              Wetherhorn, 156 P.3d at 380.
       23
            Id. at 380-81 (quoting Akpik v. State, Office of Mgmt. & Budget, 115 P.3d
532, 536 (Alaska 2005)).
       24
             Fairbanks Fire Fighters Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d
1165, 1168 (Alaska 2002).
       25
              205 P.3d at 1106-08 (quoting Wetherhorn, 156 P.3d at 375).

                                            -9-                                        6862

              First, as in E.P.,26 the disputed issues in this case do not depend heavily on
Daniel’s unique facts and therefore are capable of repetition. “When disputed issues turn
on unique facts unlikely to be repeated, we have refused to find an exception to
mootness.”27 But Daniel is not challenging his initial detention, which might entail case-
specific factual analysis, but rather the fact that he was subject to an ex parte evaluation
order. The question of the constitutionality of subjecting someone in custody under
AS 47.30.705 to an ex parte proceeding arises every time that an evaluation petition is
filed under AS 47.30.710(b).
              Second, due process challenges to evaluation orders under AS 47.30.710(b)
will repeatedly circumvent review because the authorized 72-hour confinement period
will have long since expired before an appeal can be heard.28
              Third, Daniel argues that the question whether people are regularly
subjected to unconstitutional ex parte proceedings in the superior court presents an issue
of sufficient importance to the public interest as to justify overriding the mootness
doctrine. Daniel also notes the importance of providing guidance to courts as to when
such ex parte orders are permissible. The State argues that this case does not warrant
discretionary review. But Daniel’s due process claims do implicate the scope and




       26
              Id. at 1107.
       27
            Id. (citing Wetherhorn, 156 P.3d at 381, where we found the public interest
exception inapplicable under the first prong because the facts were specific to
Wetherhorn and therefore the issue was not capable of repetition).
       28
           See id. (stating that “[i]t is quite unlikely that an appeal from a 30-day or
90-day commitment, or even a 180-day commitment, could be completed before the
commitment has expired”).

                                           -10-                                       6862

interpretation of the statutory provisions that allow the State to curtail the liberty of
members of the public.29 We thus conclude that Daniel’s claims satisfy the third factor.
              Because all three factors of the public interest exception to the mootness
doctrine are satisfied, we conclude that we will review Daniel’s due process claims.30
              2.	       Daniel’s evaluation order form, based on a court system form,
                        contained inaccurate language which we have corrected.
              Daniel argues that the collateral consequences exception to the mootness
doctrine should be extended to the appeal of orders authorizing hospitalization for
evaluation.31 He points to the former title of form order MC-305, “Order on Petition for


       29	
              See id.
       30
              Daniel argued in the alternative that if this court holds his appeal moot and
declines review, this court should order a vacatur of the order. Because we reach the
merits of Daniel’s claim, we do not decide whether vacatur of the superior court’s order
would have been appropriate if we had dismissed his claim as moot. We do note the
availability of a potential alternative remedy under AS 47.30.850, which provides:
              Following the discharge of a respondent from a treatment
              facility or the issuance of a court order denying a petition for
              commitment, the respondent may at any time move to have
              all court records pertaining to the proceedings expunged on
              condition that the respondent file a full release of all claims
              of whatever nature arising out of the proceedings and the
              statements and actions of persons and facilities in connection
              with the proceedings. Upon the filing of the motion and full
              release, the court shall order the court records either
              expunged or sealed, whichever the court considers
              appropriate under the circumstances.
       31
               “[T]he collateral consequences doctrine ‘allows courts to decide otherwise-
moot cases when a judgment may carry indirect consequences in addition to its direct
force, either as a matter of legal rules or as a matter of practical effect.’ ” In re Joan K.,
273 P.3d 594, 597-98 (Alaska 2012) (quoting Peter A. v. State, Dep’t of Health & Soc.
                                                                                (continued...)

                                            -11-	                                       6862

Involuntary Commitment for Evaluation,” to argue that an order authorizing a 72-hour
hospitalization for evaluation under AS 47.30.710(b) could entail collateral
consequences similar to those of an involuntary commitment order.
             We acknowledge that the former title of the form order incorrectly referred
to involuntary commitment instead of using the statutory language, “ex parte order
authorizing hospitalization for evaluation,” found in AS 47.30.710(b).         And we
understand Daniel’s concerns about the possibility of collateral consequences stemming
from the use of the term “involuntary commitment” to refer to a 72-hour hospitalization
for evaluation under AS 47.30.710(b). As noted above, we have taken administrative
action during the pendency of this appeal to correct the title of forms MC-100 and
MC-305. Form MC-100 is now titled “Petition for Hospitalization for Evaluation.”
Form MC-305 is now titled “Order Authorizing Hospitalization for Evaluation.”
Because we reach the merits of Daniel’s due process claims under the public interest
exception to the mootness doctrine, we do not further address the applicability of the
collateral consequences exception in the context of a 72-hour evaluation order.
      C.	    The Evaluation Order Issued Ex Parte Did Not Violate Daniel’s
             Constitutional Right to Due Process.
             Daniel claims that his procedural due process rights were violated because
he was not given notice and a hearing prior to the issuance of the order that he be
hospitalized for a 72-hour evaluation. He argues that because he was already in
protective custody, there was no emergency that would justify the lack of notice and a
hearing before the issuance of the 72-hour evaluation order.




      31
        (...continued)
Servs., Office of Children’s Servs., 146 P.3d 991, 994-95 (Alaska 2006)).

                                         -12-	                                    6862
              1.	    An evaluation order issued in compliance with AS 47.30.710
                     satisfies Wetherhorn’s requirement of an “expedited process.”
              Daniel relies on Wetherhorn v. Alaska Psychiatric Institute, in which we
held that “[i]nvoluntary commitment implicates Alaska’s constitutional guarantees of
individual liberty and privacy and therefore entitles the respondent to due process
protections.”32 Although Daniel was not subjected to an involuntary commitment
proceeding, he is correct to assert that his emergency detention and subsequent
hospitalization for evaluation also implicate due process protections. In Wetherhorn, we
emphasized that the process following initial confinement under an ex parte order under
AS 47.30.705 must be “expedited,” stating: “The expedited process required for
involuntary commitment proceedings is aimed at mitigating the infringement of the
respondent’s liberty rights that begins the moment the respondent is detained
involuntarily.”33
              Alaska Statutes Title 47 details a mandatory timeline for emergency
psychiatric detention and evaluation which reflects the legislative concern for the liberty
interests at stake. Alaska Statute 47.30.710(a) requires that a person who is detained for
a psychiatric emergency be examined and evaluated by a mental health professional and
a physician within 24 hours of arrival at an evaluation facility. If, after the initial
emergency examination, the mental health professional has reason to believe the person
is “(1) mentally ill and that condition causes the respondent to be gravely disabled or to
present a likelihood of serious harm to self or others, and (2) is in need of care or




      32	
              156 P.3d 371, 379 (Alaska 2007) (citations omitted); see also Addington
v. Texas, 441 U.S. 418, 425 (1979) (“[C]ivil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process protection.”).
       33	
              Wetherhorn, 156 P.3d at 381.

                                           -13-                                      6862
treatment,”34 then AS 47.30.710(b) permits the mental health professional to arrange for
the hospitalization of the person for evaluation on “an emergency basis.”
              In response to Daniel’s argument that there was no on-going psychiatric
emergency, we note that he does not challenge his initial emergency detention by the
police officer. Less than seven hours passed between the initial detention and the
issuance of the evaluation order. Daniel was transported to API and admitted within four
hours of the issuance of the order. The psychiatric personnel who filed the petition for
evaluation stated under oath that Daniel continued to present a threat of harm. Other
than the fact of being in custody, there is nothing in the record to indicate that the initial
emergency had abated before the issuance of the evaluation order.                  Based on
AS 47.30.710(b)’s provision for hospitalization for a 72-hour evaluation on “an
emergency basis,” the legislature clearly envisioned that a psychiatric emergency could
continue past the initial emergency detention.            Daniel’s evaluation order was
appropriately issued on an emergency basis under AS 47.30.710(b).
              The 72-hour hospitalization for evaluation on an emergency basis must be
approved by a judicial officer via an “ex parte order authorizing hospitalization for
evaluation.”35 After receiving a proper order, the evaluation facility “shall accept the
order and the respondent for an evaluation period not to exceed 72 hours.”36 The
evaluation facility must “promptly notify the court of the date and time” of the person’s
arrival in order to ensure that a full 30-day commitment hearing is held, if needed,


       34
              AS 47.30.710(b). In Wetherhorn, we concluded that the state’s involuntary
commitment statutes satisfy due process if they are construed to require a showing that
a respondent is both (1) mentally ill and (2) in danger of harming himself or others or
unable to live safely outside a controlled environment. Wetherhorn, 156 P.3d at 384.
       35
              AS 47.30.710(b).
       36
              AS 47.30.715.

                                            -14-                                        6862

“within 72 hours” of the person’s arrival.37 “If at any time in the course of the 72-hour
period the mental health professionals conducting the evaluation determine that the
respondent does not meet the standards for commitment . . . , the respondent shall be
discharged from the facility . . . .”38
              The result of this statutory framework is that a person in Daniel’s position
is given an initial evaluation within 24 hours. If the mental health professional
determines that further evaluation is necessary, the statutory structure then ensures that
a judicial officer will review the probable cause justifying the initial emergency detention
as well as the justification for additional emergency hospitalization and evaluation.39
This second evaluation must be completed within 72 hours and followed by the release
of the respondent or a 30-day commitment hearing with extensive procedural
protections.40 We conclude that the emergency psychiatric detention and evaluation
statutes applied in Daniel’s case satisfy Wetherhorn’s requirements because they provide
for an expedited process that is appropriately protective of the respondent’s liberty
interests and that avoids unnecessarily prolonging the respondent’s emergency detention.




       37
              Id.
       38
              AS 47.30.720.
       39
             See AS 47.30.705 (allowing for emergency psychiatric detention and
evaluation of a person when a peace officer, a psychiatrist or physician, or a clinical
psychologist “has probable cause to believe that [the] person is gravely disabled or is
suffering from mental illness and is likely to cause serious harm to self or others of such
immediate nature that considerations of safety do not allow initiation of involuntary
commitment procedures set out in AS 47.30.700”).
       40
           See AS 47.30.735 (establishing the procedures and standards for 30-day
commitments).

                                           -15-                                       6862

             2.	    The Mathews v. Eldridge test applies to Daniel’s due process
                    claim regardless of the existence of an emergency situation.
             In analyzing Daniel’s due process claim, we apply the foundational test
from Mathews v. Eldridge.41 Daniel disputes the applicability of the Mathews v. Eldridge
test. He argues that we should not reach the Mathews v. Eldridge analysis in this case
because due process mandates a per se rule of notice and a hearing before deprivation
absent an emergency situation, and that in this case there was no emergency to justify the
lack of prior notice and a hearing. We disagree that the application of the Mathews v.
Eldridge analysis depends on the existence of an emergency.
             Daniel cites to the recent decision of this court in Patrick v. Municipality
of Anchorage, Anchorage Transportation Commission for the proposition that a party
is automatically “entitled to some form of hearing appropriate to the circumstances
before revocation, absent an emergency situation or a public safety concern requiring
summary action.”42 Even though there was no emergency situation in Patrick, we still
applied the Mathews v. Eldridge balancing test:




      41
              424 U.S. 319, 334-35 (1976) (announcing the test for due process
deprivations under the federal constitution). We described the Mathews test as
“instructive” when interpreting the requirements of due process under the Alaska
Constitution in City of Homer v. State, Department of Natural Resources, 566 P.2d 1314,
1319 (Alaska 1977), and we recently stated in Patrick v. Municipality of Anchorage,
Anchorage Transportation Commission, 305 P.3d 292, 299 (Alaska 2013), that “[w]e
look to the [Mathews test] to determine the requirements of due process.”
      42
             305 P.3d at 299 (emphasis in original) (footnote omitted).

                                          -16-	                                     6862

              Due process does not require any specific type of hearing.
              The necessary opportunity to be heard depends on the nature
              of the case; it is “not fixed in form.” We look to the test set
              forth by the United States Supreme Court in Mathews v.
              Eldridge to determine the requirements of due process.[43]
Daniel also cites to Zinermon v. Burch where the U.S. Supreme Court similarly stated
that “[d]ue process . . . is a flexible concept that varies with the particular situation” and
applied the Mathews v. Eldridge test in a civil commitment case.44
              Whether or not there was an emergency situation at the time of the
evaluation order, our precedent dictates that the Mathews v. Eldridge test applies in the
due process analysis.
              3.	    The Mathews v. Eldridge factors weigh against Daniel’s due
                     process claim.
              In order to determine if Daniel’s hospitalization for evaluation complied
with due process, we apply the Mathews v. Eldridge due process balancing test:
              [The] identification of the specific dictates of due process
              generally requires consideration of three distinct factors:
              First, the private interest that will be affected by the official
              action; second, the risk of an erroneous deprivation of such
              interest through the procedures used, and the probable value,
              if any, of additional or substitute procedural safeguards; and
              finally, the Government’s interest, including the function




       43
              Id. (footnotes omitted).
       44
              494 U.S. 113, 127 (1990).

                                            -17-                                        6862
              involved and the fiscal and administrative burdens that the
              additional or substitute procedural requirement would
              entail.[45]
              In applying this test, we conclude that Daniel’s procedural due process
rights were not violated, that the State’s emergency detention and evaluation procedures
worked efficiently and effectively, and that the additional protections that Daniel
advocates would likely lengthen unnecessary confinement.
              In characterizing the “private interest” affected pursuant to the first
Mathews v. Eldridge factor, the State distinguishes between the purpose and meaning of
a 72-hour evaluation order and a 30-day involuntary commitment order. The State notes
that a 30-day commitment order indicates that a court has found by clear and convincing
evidence that the respondent is mentally ill and a danger to himself or others, or is
gravely disabled.46 The State argues that the purpose of a 72-hour evaluation order, on
the other hand, is to obtain a professional medical opinion on whether commitment is
necessary and does not mean that a court has definitely ruled on a respondent’s
condition. The State asserts that the private interest at stake in this case is not freedom
from confinement since Daniel does not challenge his initial emergency detention, but
rather Daniel’s interest in not being subjected to further emergency psychiatric
evaluation under a 72-hour evaluation order.




       45
              Mathews, 424 U.S. at 334-35.
       46
            See In re Joan K., 273 P.3d 594, 598 (Alaska 2012) (“To involuntarily
commit someone to a treatment facility for up to 30 days, a court must first find, by clear
and convincing evidence, that the person ‘is mentally ill and as a result is likely to cause
harm to [self] or others or is gravely disabled.’ ” (alteration in original) (quoting
AS 47.30.735(c))).

                                           -18-                                       6862

              In Wetherhorn, we recognized that the “infringement of the respondent’s
liberty rights . . . begins the moment the respondent is detained involuntarily.”47 We
decline to parse the magnitude of the liberty interest at stake in a 72-hour evaluation that
followed from an uncontested emergency detention. But we recognize that Daniel
himself has an interest in an accurate and expedited emergency evaluation and prompt
judicial review of his emergency detention and evaluation.
              The reasoning of the Washington Supreme Court in In re Harris48 is helpful
in considering the private interest at stake in a psychiatric emergency as well as the
practical effects of Daniel’s due process argument in emergency situations. The court
addressed the constitutionality of the involuntary detention provisions contained in a
Washington statute that permitted the 72-hour detention of a person who presented a
“likelihood of serious harm to others or himself.”49 The Washington court addressed the
statutory requirement of “ ‘imminent danger’ for temporary emergency detentions.”50
The court recognized that “the potential deprivation of liberty is great.”51 But the court
also noted “the practical effect of being placed in the hospital will usually eliminate the
‘imminence’ of one’s dangerousness.”52 It concluded: “If we were to require ‘imminent
danger’ as a requirement of continued commitment, we would be creating a standard that




       47
              Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 381 (Alaska 2007).

       48
              654 P.2d 109 (Wash. 1982).

       49

              Id. at 110 (quoting a Washington statute that has since been revised).
       50
              Id. at 113 (same).
       51
              Id.
       52
              Id.

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(in many cases) would invalidate commitment as soon as it occurs.”53 Similarly, if this
court found that the emergency that justified Daniel’s initial detention was abated simply
by the fact of custody, then emergency detention would often be invalidated as soon as
it occurred without a full psychiatric evaluation of the respondent’s condition, need for
treatment, and “likelihood of serious harm to self or others.”54
              In applying the second Mathews v. Eldridge factor, we conclude that the
risk of an erroneous deprivation through the procedures used is relatively low. The
evaluation petition was filed by disinterested medical staff after determining that Daniel
was in need of a full psychiatric evaluation. A neutral magistrate judge promptly
reviewed the petition and determined that it stated adequate cause to support an
evaluation.55 We recognize that preliminary determinations may be incorrect and result


       53
              Id.
       54
              AS 47.30.710(b).
       55
               Although neither party briefs the applicability of the Fourth Amendment
protection against unreasonable seizures in the context of emergency psychiatric
detention and evaluation, we note that federal precedent exists applying the Fourth
Amendment to involuntary hospitalization of persons for psychiatric reasons. See Ahern
v. O’Donnell, 109 F.3d 809, 815-16 (1st Cir. 1997) (concluding that seizing an
individual for involuntary hospitalization pursuant to state statute required probable
cause); Villanova v. Abrams, 972 F.2d 792, 795 (7th Cir. 1992) (“A civil commitment
is a seizure, and may be made only upon probable cause . . . .”); United States v. Shields,
522 F. Supp. 2d 317, 332 (D. Mass. 2007) (“It is well-settled that the Fourth Amendment
protection against unreasonable seizures applies to the involuntary hospitalization of
persons for psychiatric reasons.”). The United States Supreme Court has determined that
“[w]hen the stakes are . . . high, the detached judgment of a neutral magistrate is essential
if the Fourth Amendment is to furnish meaningful protection from unfounded
interference with liberty.” Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (“[T]he Fourth
Amendment requires a judicial determination of probable cause as a prerequisite to
extended restraint of liberty following arrest.”). Absent emergency or extraordinary
                                                                              (continued...)

                                            -20-                                       6862

in unnecessary 72-hour evaluations. But the evaluation period may also not last a full
72 hours, and the result of the evaluation may be immediate freedom. This is in fact
what happened to Daniel.
              The record shows that the State complied with the statutory requirements
for emergency detention and evaluation56 and that Daniel would have received a post-
deprivation hearing with extensive procedural protections57 within the time required by
statute had a commitment petition been filed.58 We agree with the State’s position that
a prompt evaluation under an expeditiously issued ex parte order is more likely to result
in the prompt release of a respondent who does not meet the standards for commitment
than a procedure under which a full psychiatric evaluation does not occur until after a
contested hearing with counsel.59 As a practical matter, a pre-evaluation hearing could
not occur as quickly as an ex parte order and would likely lengthen a respondent’s


       55
        (...continued)
circumstances, the probable cause determination should occur within 48 hours of
detention. Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991).
       56
              AS 47.30.715 provides:
              When a facility receives a proper order for evaluation, it shall
              accept the order and the respondent for an evaluation period
              not to exceed 72 hours. . . . The court shall set a date, time,
              and place for a 30-day commitment hearing, to be held if
              needed within 72 hours after the respondent’s arrival . . . .
       57
              See AS 47.30.730-.735.
      58
             The superior court scheduled a 30-day commitment hearing to be held two
days after Daniel’s initial detention, but Daniel was released prior to the scheduled time.
       59
             Because Daniel did not brief the Mathews v. Eldridge test, the court was not
presented with proposed alternative procedures to an ex parte evaluation order. At oral
argument, however, Daniel argued that due process at the very least required a hearing
with appointed counsel prior to the issuance of a 72-hour evaluation order.

                                           -21-                                      6862

unnecessary confinement beyond 72 hours. We conclude that this would defeat the
legislative scheme and could result in a greater deprivation of an individual’s liberty than
the expedited emergency evaluation and judicial review process now in place.
                In applying the third Mathews v. Eldridge factor, which looks to the
government’s interest and the burdens of an alternative procedure, we agree with the
State that it has a strong interest in obtaining a prompt psychiatric evaluation of a
respondent who has been detained on an emergency basis to determine if civil
commitment is warranted.60 We recognize the practical importance of evaluation orders
for the functioning of the civil commitment system and the necessity of providing the
court in a subsequent 30-day commitment hearing with the opinion of an informed health
professional.
                We conclude that a pre-evaluation hearing with appointed counsel would
provide little additional benefit to the respondent. Sufficient due process is provided by
the statutory requirements for a speedy evaluation and either release or subsequent court
hearing.61 We therefore conclude that Daniel’s right to due process was not violated.
V.     CONCLUSION
                We AFFIRM the superior court’s evaluation order and REMAND for
correction of the title of the order in accordance with this opinion.



       60
               In accordance with the applicable Alaska Statutes, Daniel’s emergency
detention was reviewed by a detached and neutral magistrate less than eight hours after
his initial detention. As a practical matter, requiring an adversarial hearing prior to
judicial review of an emergency psychiatric detention would likely entail that a person
in Daniel’s position would be detained longer than 48 hours before a judicial
determination of probable cause could be made. This would adversely affect the State’s
interest in promptly ensuring that persons in Daniel’s position are not detained without
probable cause.
       61
                See AS 47.30.700-.735.

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