In the Matter of the Hospitalization                    )


                                    of                                 )


FAITH J. MYERS                                           )

____________________________________)                       Case No. 3AN 03-277 PR





            COMES NOW Respondent, by and through her counsel of record, and hereby opposes to proceeding on the second amended 90-day commitment filed on this day by the state.  Respondent also hereby replies to the state’s opposition to her motions to dismiss regarding time and the inadequacy of the 90-day commitment petition.


            The state is without authority to proceed on yet another petition.  AS 47.30.740(a) specifically provides that the 90-day petition must be filed during the Respondent’s 30-day commitment.  Under AS 47.30.805, that time is long past.  Allowing the state to continue to amend the 90-day petition would render these provisions meaningless.  It would also be contrary to decisions in a great many other jurisdictions that have recognized the “massive curtailment of liberty” that involuntary commitment to a mental hospital imposes, by strictly interpreting involuntary commitment statutes. Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052 (1972). See e.g., Covington v. Harris, 419 F.2d 617, 623 (U.S.App.D.C. 1969) (statutes “sanctioning such a drastic curtailment of the rights of citizens must be narrowly, even grudgingly, construed in order to avoid deprivations of liberty without due process of law.”); In re Elkow, 521 N.E.2d 290 (Ill.App. 1988) (any noncompliance with a statutory procedure for involuntary admission renders the judgment in the case erroneous and of no effect.”); In re Wahlquist, 585 P.2d 437, 439 (Utah 1978) (“However well intended, the confinement of a person in an institution for mental health treatment is just as effective a restraint on personal liberty as confinement in a prison and may, in some instances, be even more trying or burdensome. It is therefore essential that the rights of one so confined be treated with the same degree of respect as are the rights of persons deprived of their liberty upon accusation or conviction of criminal conduct. Consistent with that principle, it is important that there be full compliance with statutes setting forth the procedures for commencing and continuing such involuntary hospitalization.”); In re Morlock, 862 P.2d 415 (Mont. 1993) (civil commitment laws are to be strictly followed so state’s failure to comply with statutory time requirements for filing recommitment petition deprived trial court of authority to recommit); In re Cross, 662 P.2d 828 (Wash. 1983) (involuntary commitment statutes allow for deprivation of liberty interest so must be strictly construed.); People in Interest of Dveirin, 755 P.2d 1207, 1209 (Colo. 1988) (“because of the curtailment of personal liberty which results from certification of mental illness, strict adherence to the procedural requirements of the civil commitment statutes is required.”). 

            In addition to the facts that the state has no statutory authority, and has provided no judicial support for filing yet another amended petition almost two months after Respondent has been involuntarily committed, it has also been stated by the state’s counsel on the record during the hearing setting conference for this matter, that the state would be proceeding on the first amended petition.  Respondent has relied upon this statement, as well as clear statutory mandates, and guidance from other jurisdictions, for preparing a defense to the allegations provided in the first amended petition.  To allow the state to proceed on the second amended petition at this point would be fundamentally unfair.[1]


            In opposing Respondent’s motion to dismiss regarding the expiration of time to commence the 90-day commitment hearing and the inadequacy of the 90-day commitment petition, the state has essentially one argument:  Waiver.  The state claims that Respondent waived her right have a hearing commenced within five days of the petition being filed because she requested a public hearing in a courtroom other than a conference room at the Alaska Psychiatric Institute (API).  In support of its waiver argument, the state ignores the guidance from other jurisdictions cited by Respondent’s motion[2] and refers in passing to two Alaska cases that have nothing to do with involuntary civil commitment. 

            First, the two waiver cases Respondent cites involve a real estate transaction Miscovich v. Tryck, 875 P.2d 1293 (Alaska 1994), and a debtor creditor matter Milne v. Anderson, 576 P.2d 109 (Alaska 1978).  Waiving one’s liberty interest in having civil commitment statutes strictly interpreted simply cannot be judged by the same standards as waiving a property or credit interest.  As stated above, the Supreme Court has noted that involuntary commitment is a “massive curtailment of liberty.” Cady at 509.  It has also said that:  “The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement.  It is indisputable that commitment to a mental hospital "can engender adverse social consequences to the individual" and that "[w]hether we label this phenomena 'stigma' or choose to call it something else . . . we recognize that it can occur and that it can have a very significant impact on the individual." Vitek v. Jones, 445 U.S. 480, 492, 100 S.Ct. 1254, 1263 (1980) (quoting Addington v. Texas, 441 U.S. 418, 425-26, 99 S.Ct. 1804, 1809 (1979).

            Second, the cases the state cites in support of waiver require “the intentional relinquishment of a known right.” Tryck, 875 P.2d at 1301 (quoting Anderson, 576 P.2d at 112).  Respondent has not intentionally relinquished any rights.  Respondent simply asked for a public hearing on March 28, 2003.  The hearing that she was entitled to have commenced within five days of the 90-day commitment petition being filed was eventually scheduled for April 16, 2003 (23 days after the filing of the petition, and 19 days after her request for a public hearing).  By the time her hearing begins Respondent will have almost served another 30-day commitment since the 90-day commitment petition was filed.   Respondent’s situation is an excellent example of why strict interpretation of the right to have a hearing commenced within five days after the filing of the petition is necessary.  If one waives this right by requesting a public hearing the result can lead to indefinite (in her case at least 23 days) involuntary confinement following the petition.  Due to the important liberty interest involved, the broadest interpretation of the five-day time rule would find that Respondent was entitled to the commencement of a hearing five days from the time of her request for a public hearing. 

            Third, the state claims that Respondent never objected to the delay in resetting the hearing prior to filing a motion to dismiss Re: time.  This is simply not true.  The state waited until Friday, March 4, 2003 to serve Respondent with a motion to reset hearing.  Respondent provided the state with a response to this motion as soon as possible on Monday, March 7, 2003.  Respondent specifically argued in response to this motion that due to the expiration of the five-day time period, the state was without authority to continue with her involuntary hospitalization.  At what point would the state have had Respondent object to a hearing based on the five-day rule in order to avoid waiver?  

Lastly, the state asserts that Respondent’s claim of irreparable injury is not convincing.  Is the injury from being committed against her will for what amounts to nearly a second 30-day commit following the filing petition not evident?  The Supreme Court cases cited above make clear the deprivation of liberty involved, as well as the other harms that are associated with involuntary commitment.   For every second, minute, day, and week her hearing has been delayed, Respondent suffers further loss of liberty and harm.  This time can never be given back to her.  Therefore, it is the state’s suggestion of resetting the hearing as soon as possible (when it is convenient for the state, API, and the court visitor) that is “simply not convincing.”



The state also asserts that Respondent waived her right to be notified of the specific facts and behavior that the state would be relying on as the basis for the allegations set forth in the petition because she did not assert this right soon enough.  The state further claims that even if Respondent is found not to have waived these rights, the remedy should not be dismissal, but rather this court should reset the hearing (“which has been done”) and grant a continuance if Respondent can demonstrate that one is required. 

Respondent objects to the state’s waiver argument on this issue for similar reasons as she objects to the application of waiver to the five-day rule issue above.  Liberty interests are not the same as property and creditor interests.   She did not intentionally relinquish a known right.  The state completely avoids addressing the statutory mandates cited by Respondent regarding petition requirements.  The state also fails to even attempt to address case law from other jurisdictions cited by Respondent that provides guidance regarding the issues of due process and notice as they relate to involuntary commitment matters. 

Respondent objected to the state’s authority to even proceed with a hearing as soon as possible after the state moved to reset the hearing.  Therefore, the state was on notice that Respondent objected to having a hearing at all, so further objections to the petition should have been no surprise.  In addition, during the hearing setting conference, Respondent specifically inquired with this court regarding when further motions were due.  This court specifically allowed until Friday, April 11, 2003 and Respondent met this court’s deadline. 

The state also argues that assuming there has been no waiver of this issue, the remedy of dismissal is not appropriate because another amendment to the petition will cure any problems with the previous two petitions and a continuance may be granted.  Respondent cannot agree.  She has already been committed against her will for far too long.  Forcing her to choose between putting on meaningful defense which would require a continuance and further uncertain confinement, and the certainty of finally have a hearing without proper notice, is not appropriate.  The proper remedy is dismissal because the liberty interest she has lost, and will continue to be deprived of with a continuance, is great, and like the liberty lost due to continuances past the five-day time for commencing a hearing, this liberty can never be returned.


Alaska statutes provide many procedural safeguards for individuals the state seeks to commit involuntarily.  In this case, the state has ignored many of Respondent’s procedural rights.  It has failed to even attempt to make a statutory based argument that for its actions.  It has also avoided responding to Respondent’s citations to relevant case law from other jurisdictions.   Therefore, Respondent respectfully requests this Honorable Court to dismiss the 90-commitment petition and order API to provide a discharge plan for her immediate release.

Dated:______________, 2003

                                                Law Offices of James B. Gottstein



                                                            Martin A. Engel




Certificate of Service

I HEREBY CERTIFY that a true and correct copy

Of the foregoing was served by Fax on_________,



Jeffrey Killip, Esq.

Office of Attorney General

1031 W.4th Avenue, Suite 200

Anchorage, Alaska 99501

Fax No. 258-6872



       Martin Engel



[1] The state seems to suggest that Respondent has been on notice regarding the information included in the second petition because this information could have been gathered from the 30-day commitment hearing, a deposition prior to the 30-day hearing, and Respondent’s medical chart.  If this were so, 90-day commitment petition requirements would be meaningless, since Respondent would be forced to guess which specific facts and behavior the state will be relying upon from the 30-day proceeding and voluminous medical records.

[2] See also, the cases cited above under Respondent’s argument against the second amended petition for the rulings of other jurisdictions regarding interpreting involuntary commitment statutes strictly.