Law Project for Psychiatric Rights: PsychRights  

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Case Four -- Wetherhorn v. Alaska Psychiatric Institute
by James B. Gottstein, Esq.

Wetherhorn I Wetherhorn II

Wetherhorn I

Wetherhorn I sought to establish the right to effective assistance of counsel in involuntary commitment and forced drugging cases in Alaska.  It also sought to have the "B" prong of gravely disabled under AS 47.30915(7) declared unconstitutional.  The Alaska Supreme Court issued its Opinion on January 12, 2007, however rehearing was granted and a new decision issued April 13, 2007 in Wetherhorn v. Alaska Psychiatric Institute, 156 P.3d 371 (Alaska 2007).   We won on the gravely disabled issue, but the court ruled there was an insufficient record to rule on the ineffective assistance of counsel issue. It is called Wetherhorn I, because we had another appeal for Ms. Wetherhorn, called Wetherhorn II

Gravely Disabled Standard Struck Down.  In the Decision, the Alaska Supreme Court ruled that a person could not be involuntarily committed as "gravely disabled" unless the "level of incapacity [is] so substantial that the respondent is incapable of surviving safely in freedom."  (emphasis added).  This is a huge win.  The court, however, upheld the commitment and we asked for rehearing because there was no evidence in the record to support commitment under the new standard.  The revised decision acknowledges this holding as follows:

Because we need not determine whether the issues raised by the facts on record, now moot, meet the gravely disabled standard of AS 47.30.915(7)(B) as construed, . . .  we VACATE the superior court’s order granting that petition without need for remand.

Ineffective Assistance of Counsel Not Decided.  With respect to the most important issue, which is people's right to have lawyers who actually work for them, ie., effective assistance of counsel, the court ruled that a direct appeal was not the way to challenge it; that there needed to be a record established in a way that is comparable to post conviction relief proceedings in criminal cases.  We felt the violation was so clear that it wasn't necessary, but the court  ruled it had to be challenged another way.  So, we will proceed to do it in a way that is consistent with the Court's ruling, which might very well be a 42 USC §1983 lawsuit in federal court for systemic violations of peoples civil rights under color of state law.  See, e.g.,

Other Matters.  We raised a number of other defects in the proceedings, but because Roslyn's attorney didn't object to anything, the court ruled we had to show it would have changed the result under the "plain error" doctrine.  This seems pretty harsh in light of the court also refusing to consider that the reason the objections weren't raised was because Roslyn's attorney didn't do anything in her behalf (i.e.., ineffective assistance of counsel).   I think maybe the most problematic one was that the hospital's failure to list witnesses as required by the statute was not plain error on the grounds, ”[t]hat a psychiatrist from API would testify in support of a petition initiated by API could surprise no one.”   However, the United States Supreme Court has unequivocally held that involuntary commitment is permissible only if "the confinement takes place pursuant to proper procedures and evidentiary standards," Kansas v. Crane, 534 U.S. 407, 409, 122 S.Ct. 867, 869 (2002).  I think it is way outside the bounds of due process for the state not to be required to say who they are planning to call (and then have an opportunity to find out the grounds for commitment), and we may therefore seek United States Supreme Court review of this issue. 

Attorney's Fees  Following the Decision, we moved for full attorney's fees as a public interest litigant.  However, the Alaska Supreme Court ruled after that that the Alaska Legislature had validly abrogated the court made public interest exception to at least Civil Rule 82 and asked us to file a supplemental brief regarding the effect of this.  We filed this brief on June 8, 2007, asserting the right of all involuntary commitment and forced drugging victims the right to have the State pay for an attorney to prosecute an appeal.  The State filed its Opposition on June 29, 2007, in which most significantly, the State conceded the State has obligation to pay for people to pay for appeals of their involuntary commitment and forced drugging orders.  On July 26, 2007, the Alaska Supreme Court awarded us $5,000 in attorney's fees.

Wetherhorn II

The second appeal, S-12249 (Wetherhorn II) asked for attorneys fees as the prevailing party in obtaining dismissal of the 90-day commitment and forced drugging petitions.  The Supreme Court decided against us in Wetherhorn II, on September 21, 2007.

Alaska Supreme Court Case No. S-11939
Revised Wetherhorn I Opinion Issued April 13, 2007
(Ineffective Assistance of Counsel/Unconstitutionality of Gravely Disabled Statute)

Alaska Supreme Court Case No. S-12249
Wetherhorn II
(Attorney's Fees)

A petition for involuntary commitment was filed against Roslyn Wetherhorn on April 5, 2005, and a petition for forced drugging on April 15, 2005.  A "trial" was held on April 15, 2005, and both Petitions were granted.  See, Order For 30 Day Commitment and Findings and Order Concerning Court Ordered Administration of Medication.

An appeal was filed May 16, 2005.  The Points on Appeal are

1. Ineffective assistance of counsel;
2. The Petition for Commitment is fatally defective on its face;
3. Involuntarily committing Appellant for being gravelly disabled under AS 47.30.735(c) as defined by AS  47.30.915(7)(b), is unconstitutional under the Alaska and United States constitutions; and
4. The Superior Court erred in finding Appellant incompetent to decline the medication.

Following this, the State filed a 90-Day Petition for Commitment and Forced Drugging.  We entered the case, demanded a jury trial, among other things, but because they were looking at a vigorously defended case, before it came to trial, the State let Ms. Wetherhorn out and dismissed the case.  We filed a modest motion for $525 in partial attorneys fees under Civil Rule 82 on this as the prevailing party as a matter of course, but also suggested enhanced or full fees were also warranted.  The State opposed saying Rule 82 does not apply to this type of proceeding.  This resulted in us filing a major Reply really pushing for enhanced or full fees based on the grossly illegal actions of the hospital and that it was necessary to potentially bring other lawyers to fill the gap left by the Public Defenders Offices' complete failure to properly represent its clients in these types of appeal.   Many of the same points in this Reply will be involved in the main appeal and the fee issue is likely destined to the Alaska Supreme Court as well (unless we win big and the State decides not to appeal) because we think it is an important piece in trying to get people real representation).  The State filed a Supplemental Opposition to the fee motion to which we filed a Supplemental Reply.  On February 9, 2006, the trial court issued an Order Denying the Motion for Attorneys Fees.

This is kind of an "ambush appeal," in that they had no idea anyone would even think about filing an appeal because PsychRights did not represent Roslyn in the initial 30-day involuntary commitment and forced drugging proceeding.  That being so, this case represents "business as usual."  Thus, we hope to demonstrate what a legal travesty these cases are.  The transcript of the hearing is not available yet, but I believe the petition for commitment is totally legally inadequate.  That this was not challenged by the public defender I believe demonstrates inadequate representation by itself, in my view, as does the failure to challenge the constitutionality of the "B part" of Alaska's gravely disabled statute.  

There are two parts to the gravely disabled statute:

(7) "gravely disabled" means a condition in which a person as a result of mental illness
(A) is in danger of physical harm arising from such complete neglect of basic needs for food, clothing, shelter, or personal safety as to render serious accident, illness, or death highly probable if care by another is not taken; or
(B) will, if not treated, suffer or continue to suffer severe and abnormal mental, emotional, or physical distress, and this distress is associated with significant impairment of judgment, reason, or behavior causing a substantial deterioration of the person's previous ability to function independently;

However, Alaska's gravely disabled statute has never been challenged.  In fact, as far as I can tell the Public Defenders Office has never taken an appeal of any involuntary commitment or forced drugging order.  I met with the Public Defenders Office in June of 2004, to advise them of legal actions on behalf of their clients they were not taking.  I brought a handout of bullet points, which I went over.  One of them was the unconstitutionality of the "B" part of Alaska's gravely disabled definition.   There has been no change in how the Public Defender Agency approaches these cases as far as I can tell. 

In my view people facing involuntary commitment and forced drugging are entitled to adequate representation and hope this appeal will establish some standards for such representation in Alaska.  The Montana Supreme Court did just that a few years ago in the KGF case. 

Last modified 1/28/2009
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