A.E., Appellant, v. LINDA THOMAS, Psy. D. and LEE BROCK, M.D. Respondent. In re the Detention of: A.E.

No. 30936-0-IIThe Court of Appeals of Washington, Division Two.
Filed: September 28, 2004 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Pierce County. Docket No: 03-6-00971-7. Judgment or order under review. Date filed: 09/12/2003. Judge signing: Hon. H. Edward Haarmann.

Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.

Counsel for Respondent(s), Achiyamma Indu Thomas, Aty General of Washington, 670 Woodland Square Loop SE, PO Box 40124, Olympia, WA 98504-0124.

HUNT, J.

A.E. appeals his 90-day involuntary commitment for treatment at Western State Hospital. Having waived counsel and objected to the trial court’s appointment of stand-by counsel below, he now challenges (1) the trial court’s allowing him to waive counsel and to proceed pro se with `standby counsel’; (2) the trial court’s removal of him from the courtroom when he became disruptive; and (3) the trial court’s limitation of his cross-examination of the State’s expert witness about her previously recited qualifications (in A.E.’s presence) on his return to the courtroom. Holding that because A.E.’s 90-day commitment has ended, we dismiss the appeal as moot.

FACTS
Petitioners Lee Brock, M.D., and Linda Thomas, Psy. D., filed for 90-day involuntary mental health treatment for A.E. at Western State Hospital under RCW 71.05.320.

I. Preliminary Hearing
At the preliminary hearing, the trial court advised A.E. of his rights, including (1) his right to counsel, and (2) his right to ask the court to appoint a professional to testify on his behalf and to help him seek `less restrictive alternative courses of treatment.’ Report of Proceedings (RP) at 1. When the trial court told A.E. that it was going to appoint counsel for him, A.E. replied, `I’d like to be heard in open court. I would follow up and protest. . . . In my opinion, this is fraud.’ RP at 2. The trial court appointed counsel for A.E.

II. Probable Cause Hearing A. Waiver of Counsel; Appointment of Standby Counsel
At the probable cause hearing four days later, September 12, 2003, A.E. appeared with appointed counsel and immediately told the trial court, `[I am] representing myself,’ and `[n]o one talks on my behalf.’ RP at 3. A.E.’s counsel advised the court that A.E. would not permit her to speak for him `under any circumstances’; A.E. had asked her to leave the courtroom; therefore, she would not speak on his behalf; and she had also advised A.E. that she could not leave the courtroom without the court’s approval. A.E. responded, `Your Honor, counsel tells the truth.’ RP at 3.

When the trial court began to explain the nature of the proceedings to A.E, he immediately interrupted, stating:

[T]his is [a] fraud. Total fraud. At this time I state this is in open court. I am very hungry. I am very hungry, and I’m very thirsty — . . . . very thirsty. It’s past my nutrition time. I’m not in * * * *[1]
in a position, or situation to represent myself. I’d like to have eat [sic], I’d like to drink, and I have to rest, and I’ll come back to your court, Your Honor.

RP at 3-4.

The trial court asked whether A.E. wanted to continue the hearing. The State responded that its witness would be unavailable on the date proposed. The State’s attorney further asserted his belief that A.E. lacked the capacity to waive counsel `knowingly and voluntarily.’ RP 4. The trial court did not inquire further about A.E.’s waiver of counsel. Instead, the trial court directed A.E.’s counsel `to remain and be present’ at the proceeding, with the caveat that `[i]f [A.E.] directs her not to speak on his behalf, then that’s . . .,’ at which point A.E. interrupted and complained again about his hunger and thirst. RP at 4. A.E.’s counsel did not speak again on the record.

B. Dr. Thomas’s Testimony
The State’s only witness, Petitioner Linda Thomas, Psy. D., testified about her professional qualifications without objection or interruption by A.E. Dr. Thomas then testified about A.E.’s medical and mental health history and his behavior on the ward at Western State Hospital. She stated that during the previous three days, A.E. had been easily agitated, insisted that he was not at Western State Hospital, and talked about having a delusional relationship with the FBI. She diagnosed A.E. with `schizo * * * *[2] disorder, bipolar type, most recent episode, manic.’ RP at 6-7.

A.E. again became disruptive. The trial court warned him that he must remain quiet to hear the testimony and that if he did not, the court would remove him until it was his turn to testify. The court warned A.E. once more and, after A.E.’s third series of outbursts, had security remove him from the courtroom.[3]

While A.E. was outside the courtroom, Dr. Thomas gave additional testimony about A.E.’s mental health history and prognosis as follows: (1) This was A.E.’s sixth admission to Western State Hospital, in addition to other hospitalizations in the community; (2) A.E.’s illness and his argumentative, vaguely threatening, and harassing behavior had led to eviction from his last residence; (3) A.E. did not recognize he had a mental illness, would not submit to treatment, and had consistently failed to follow up with outpatient services; and (4) A.E. was not capable of caring for his basic needs or making rational decisions for his treatment needs.

The trial court brought A.E. back into the courtroom and asked if he wanted to cross-examine Dr. Thomas. When A.E. began asking Dr. Thomas to recite her qualifications, the court explained that (1) Dr. Thomas need not repeat her qualifications, which she had `already given . . . for the record’ while A.E. had been present (before his removal from the courtroom); and (2) the court had already `ruled that she’s qualified as an expert.’ RP at 17.

A.E. then conducted an argumentative cross-examination of Dr. Thomas, challenging her observations of (1) his agitated state on the ward; (2) his response to `internal stimuli’; (3) his `hallucinations, difficulty with understanding that [he’s] a patient at Western State Hospital,’ RP at 17-18; (4) his `talking to the ceiling . . . as if there’s somebody there, when no one else sees that person,’ (which A.E. said was `praying)’ RP at 19; and (5) his refusal to take medications or treatment.

A.E. asked Dr. Thomas why she thought he should `take the medication at Western State?’ Thomas responded, `I believe you have a mental disorder that needs to be treated.’ A.E. replied, `That has to be decided by the Court, not by you. You have to come to Court, and the Court says [A.E.], you’re sick.’ RP at 18.

C.A.E.’s Testimony
A.E. then testified on his own behalf. Although some of his testimony appears irrelevant, he did explain to the trial court his perception of the sequence events leading to his appearance in court and the various mental health professionals who had examined him `to see if [he was] crazy or not.’ RP at 20. A.E. concluded, `Defense rests, Your Honor.’ RP at 22. The State also rested.

D. Trial Court’s Finding
The trial court found that A.E. suffered from a `mental disorder, which at this time renders him gravely disabled’ and that `less restrictive alternatives to involuntary detention and treatment are not in his best interest.’ RP at 23. The trial court ordered involuntary treatment for A.E. at Western State Hospital for up to 90 days.

III. Hearing on A.E.’s Motion for Reconsideration
On October 9, 2003, the trial court held a hearing on A.E.’s motion for reconsideration. A.E. again appeared pro se. When A.E. objected that Dr. Thomas was not in the courtroom, the trial court explained that an attorney was present to represent the State.

The State opposed A.E.’s motion as untimely under the civil Rules of procedure and no longer within the trial court’s jurisdiction because A.E. had filed an appeal. A.E. argued that the civil rules should not control an involuntary commitment proceeding such as his. After explaining that the civil rules apply to mental health proceedings, the trial court denied A.E.’s motion as untimely.

IV. Hearing on A.E.’s Motion for Mistrial
On October 28, 2003, the trial court held a hearing on A.E.’s motion for a mistrial. He again appeared pro se.

A.E. argued that (1) Dr. Thomas had not been sworn before she gave her testimony on September 12 and she did not tell the truth; (2) he had been shackled and removed from the courtroom `without a reason’ for 15 minutes; and (3) the trial court was `totally biased towards the State.’ RP at 29. The trial court denied A.E.’s motion as untimely.

V. End of A.E.’s Commitment
A.E.’s Western State Hospital commitment at issue here expired nine months ago in December 2003. The record does not reflect subsequent, similar commitments of A.E.

ANALYSIS
Both parties agree this case is moot. The trial court ordered involuntary treatment on September 12, 2003; under that order, A.E. remained subject to commitment only until December 11, 2003. Accordingly, his 90-day involuntary treatment has long since ended.

Nonetheless, an appellate court can rule on the merits of an otherwise moot case if an issue of sufficient, continuing, and substantial public interest is involved, Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972), based on the following criteria:

(1) the public or private nature of the question presented; (2) the desirability of an authoritative determination which will provide future guidance to public officers; and (3) the likelihood that the question will recur.

Dunner v. McLaughlin, 100 Wn.2d 832, 838, 676 P.2d 444 (1984); Sorenson, 80 Wn.2d at 558. Actual and rigorous application of these criteria is necessary `to ensure that an actual benefit to the public interest in reviewing a moot case outweighs the harm from an essentially advisory opinion.’ Hart v. Dep’t of Soc. and Health Servs., 111 Wn.2d 445, 450, 759 P.2d 1206 (1988). This case does not meet these criteria.

We first note that none of the A.E.’s issues on appeal require clarification of any statutory language. The statutory scheme explicitly lays out a civil commitment respondent’s rights to counsel and cross-examination,[4] both of which the trial court appears to have accorded A.E. while trying to conduct the proceedings in an orderly manner.[5] We further note that neither the record nor the parties here suggest that such problems arise regularly in involuntary commitment proceedings.

We acknowledge the potential need for guidelines governing waiver of right to counsel in involuntary commitment proceedings. But the record here has not been sufficiently developed to address this issue.[6]
Moreover, even were we to attempt to address some of these issues, we could not provide A.E. any relief now that his commitment is long over.

Accordingly, we hold that his case is moot, and we dismiss the appeal.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG, P.J., VAN DEREN, J., Concur.

[1] Apparently these asterisks denote words that were unintelligible to the transcriber of the recording of the hearing.
[2] See n. 1.
[3] The record does not show whether A.E.’s counsel remained in the courtroom at this point. Even assuming she was present, the record reflects no actions or statements by her. Conversely, the record does not reflect that the trial court gave counsel permission to leave.
[4] RCW 71.05.200(1)(b) (`a right to communicate immediately with an attorney . . . [and] to have an attorney appointed.’); RCW 71.05.460 (`If the person so elects, the court shall immediately appoint an attorney to assist him or her.’); RCW 71.05.250 (`At the probable cause hearing the detained person shall have the following rights: . . . (2) To cross-examine witnesses who testify against him or her.’). We acknowledge that at the present time, there seem to be no standards articulated for competent waiver of counsel by mental health respondents in involuntary commitment proceedings, especially for those who insist on self-representation.
[5] Even if court disruptions by mental health respondents, voluntarily pro se or represented by counsel, could be a recurring problem, how a trial court handles each case and determines a respondent’s competency to waive counsel is likely to be highly dependant on the unique facts of each case.
[6] For example, the record shows: (1) A.E. was adamant that he would allow no one to speak on his behalf; (2) he appeared pro se on at least three occasions, the last two on motions he brought before the court himself; (3) he understood the general nature of the proceedings and the State’s burden to prove to the trial court that he was `crazy’ through Dr. Thomas’ testimony; and (4) he cross-examined Dr. Thomas about the nature and truth of her observations of his behavior on the mental health ward.