Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                                FILED

                                                                              JAN 31, 2012

                                                                     In the Office of the Clerk of Court
                                                                   WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Detention of:                             No.  29565-6-III
                                                )
L.U.                                            )   Division Three
                                                )
                                                )   UNPUBLISHED OPINION
                                                )
                                                )
                                                )

       Kulik, C.J.  --  A jury found that L.U. met the criteria for commitment under 

chapter 71.05 RCW.  As a condition of L.U.'s least restrictive alternative (LRA), the trial 

court ordered L.U. to answer all necessary questions during evaluations, without evasion 

or deception.  L.U. appeals this condition, contending that the court erred by ordering him 

to answer all questions without also granting him immunity from criminal charges arising 

from any treatment disclosures.  Both the State and L.U. concede the issue is technically 

moot because the LRA has expired.  We agree the issue is moot.  And we conclude that 

the condition is unique, unlikely to reoccur, and is not an issue of continuing and 

substantial public interest.  Therefore, we dismiss the appeal. 

No. 29565-6-III
In re Det. of L.U.

                                            FACTS

       In July 2006, L.U. was charged with felony harassment for threatening to kill his 

neighbor with a pair of scissors.  Before trial, L.U. was evaluated at Eastern State 

Hospital (ESH) for competency.  An ESH psychologist determined that L.U. suffered 

from paranoid schizophrenia and was incompetent to stand trial. 

       A period of commitment and forced medication did not render L.U. competent.  As 

a result, the trial court dismissed the harassment charge in June 2007.  The trial court sent 

L.U. to ESH. In late 2007, he was released to independent living under a court-ordered 

LRA.  The LRA contained conditions, including ordering L.U. to attend treatment 

appointments and to allow the free release of information between the parties controlling 

his treatment and his LRA.  Over the next three years, L.U. was the subject of continuous 

orders of LRA confinement, with similarly-worded conditions in each of these orders. 

       In August 2010, the State-designated mental health professional filed a sixth

petition seeking commitment of L.U. under chapter 71.05 RCW for 180 days.  A jury trial 

was held on the matter in October 2010. 

       The parties stipulated that L.U. was previously charged with felony harassment in 

July 2006. L.U.'s psychiatrist, Dr. William Bennett, and L.U.'s case manager, Jennifer 

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No. 29565-6-III
In re Det. of L.U.

Berdais, both testified at trial.  According to Dr. Bennett, L.U.'s paranoid schizophrenia 

was currently manifesting itself in the delusion that Dr. Bennett broke into L.U.'s 

apartment.  In addition, in July 2010, L.U. began abruptly ending his meetings with his 

providers by walking out. These observations led Dr. Bennett to believe that L.U. was 

decompensating. 

       Dr. Bennett was concerned that L.U. was not taking his medication or that his 

current dosage was inadequate.  In either case, Dr. Bennett wished to monitor the 

administration of L.U.'s medication more closely. Dr. Bennett opined that L.U. should 

remain under a commitment order because, absent an order, L.U. would not pursue 

treatment, which would ultimately endanger L.U. and the community.

       Ms. Berdais also noted that L.U. became less cooperative in July 2010.  For 

example, L.U. started bringing a clock to his bi-weekly meetings and telling Ms. Berdais 

that she only had two minutes to ask questions when she usually met with clients for at 

least 45 minutes. L.U. assured Ms. Berdais that he took his medication as prescribed. 

However, Ms. Berdais opined that L.U.'s current level of medication was ineffective 

because he was showing symptoms of his mental disorder.

       L.U. told Dr. Bennett and Ms. Berdais that he would not take his medication 

absent a court order. 

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No. 29565-6-III
In re Det. of L.U.

       The jury found L.U. met the criteria for involuntary commitment under 

RCW 71.05.320(3)(c) and (d). The jury found that L.U. had a mental disorder and, as a 

result of the disorder, he (1) presented a substantial likelihood of repeating acts similar to 

the charged felony harassment, and (2) continued to be gravely disabled. 

       After the verdict, the trial court ordered the conditions of L.U.'s previous LRA to 

remain in effect. However, at a sentencing hearing two weeks later, the State proposed a 

new condition. In this new condition, the trial court ordered that L.U. attend treatment 

appointments where the physician and case manager would ask necessary questions and 

that L.U. was to answer the questions without evasion or deception.  The condition also 

stated that candid and complete discussion of symptoms and side effects is needed to 

understand L.U.'s mental, emotional, and physical condition.

       L.U. appeals the new condition of his LRA, alleging that the condition could 

extend to probing for past criminal behavior in violation of his Fifth Amendment rights. 

Because there could be a violation, he contends the trial court should have granted him 

immunity from any criminal charges arising from such disclosures.  He also contends that 

he was denied effective assistance of counsel because his attorney failed to request 

immunity.

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No. 29565-6-III
In re Det. of L.U.

                                         ANALYSIS

       An appeal is moot if the court cannot grant the relief requested.  In re Cross, 99 

Wn.2d 373, 376-77, 662 P.2d 828 (1983).  However, a case considered moot can still be 

decided if "matters of continuing and substantial public interest are involved." Sorenson 

v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972).  To determine whether 

an issue has sufficient public interest, the court should consider (1) whether the issue is of 

a public or private nature, (2) the need for authoritative judicial guidance for public 

officers, (3) and the likelihood that the question will reoccur. In re Det. of Swanson, 115 

Wn.2d 21, 24-25, 804 P.2d 1 (1990) (quoting Dunner v. McLaughlin, 100 Wn.2d 832, 

838, 676 P.2d 444 (1984)).  In addition, the court can consider "the likelihood that the 

issue will never be decided by a court due to the short-lived nature of the case."

Philadelphia II v. Gregoire, 128 Wn.2d 707, 712, 911 P.2d 389 (1996).  Clarification of 

the civil commitment statute is a matter of continuing and substantial public interest.  In 

re Det. of G.V., 124 Wn.2d 288, 294, 877 P.2d 680 (1994) (quoting In re Det. of LaBelle, 

107 Wn.2d 196, 200, 728 P.2d 138 (1986)).  

       Both sides agree that the issue regarding the condition of L.U.'s LRA is 

technically moot.  The December 8, 2010, court order committing L.U. to a LRA for a 

180-day period has expired.  The appellate court can no longer grant relief based on this 

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No. 29565-6-III
In re Det. of L.U.

order. 

       While the State concedes that this case presents an issue of public nature, it 

maintains that review is unnecessary because the courts do not need guidance on the issue 

for future cases. Where the requested relief cannot be granted, we should dismiss the 

appeal.  Sorenson, 80 Wn.2d at 558. That is the case here.  And, here, the facts show that 

the conditions placed on L.U. were unique and not the typical conditions given in a civil 

commitment. 

       We agree that the issue is moot and we decline to give advisory opinions on an 

issue that is not of a continuing and substantial public interest.  Therefore, we dismiss the 

appeal.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                            _________________________________
                                            Kulik, C.J.

WE CONCUR:

______________________________              _________________________________
Sweeney, J.                                 Brown, J.

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