In re S.N.

In re S.N. (2006-306)

2007 VT 47

[Filed 25-May-2007]

                                 ENTRY ORDER

                                 2007 VT 47

                      SUPREME COURT DOCKET NO. 2006-306

                              MARCH TERM, 2007


  In re S.N.                           }         APPEALED FROM:
                                       }
                                       }
                                       }         Washington Family Court
                                       }  
                                       }
                                       }         DOCKET NO. 81-5-06 Wnmh

                                                 Trial Judge: Helen M. Toor

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  The State appeals a Washington Family Court order determining
  that the State lacked probable cause that S.N. was a person in need of
  mental-health treatment.  The State argues the court erred by: (1) applying
  the rules of evidence at the probable-cause hearing and (2) failing to
  consider post-admission evidence in its probable-cause determination.  We
  dismiss the appeal as moot.
   
       ¶  2.  In May 2006, two police officers found S.N., a New York
  resident, at a highway rest stop in Vermont.  S.N. appeared disoriented and
  was unable to carry on a normal conversation.  He also displayed erratic
  behavior, such as washing his face in a parking-lot puddle and stuffing a
  large number of travel brochures into his shirt and pants.  S.N. told the
  officers he had driven from New York City to Vermont and identified his
  vehicle in the parking lot.  The officers contacted a friend of S.N. for
  help, and the ensuing conversation gave the officers cause to doubt S.N.'s
  driving abilities.  Considering this discussion in conjunction with their
  observations of S.N.'s abnormal behavior, the officers suspected S.N.
  suffered from mental illness and decided he was unfit to drive. The
  officers asked S.N. to consent to a mental-health evaluation, and S.N.
  agreed.
   
       ¶  3.  S.N. received a mental-health screening from a qualified
  professional.  During the screening, the mental-health professional
  observed S.N.'s disorganized speech and unpredictable behavior.  He also
  learned from S.N. that he had been admitted to a psychiatric hospital in
  the past and was in Vermont to stop taking his medication for "a year of
  cleansing" because he believed the medicine was poison.  In addition, the
  mental-health professional spoke with two of S.N.'s friends over the
  telephone and discovered that S.N. suffered from bipolar disorder and had
  stopped taking his medication before, which had resulted in car accidents. 
  Based on S.N.'s behavior and his friends' statements, the mental-health
  professional determined that S.N. was a "person in need of treatment" and
  completed an emergency examination application with a psychiatrist.  See 18
  V.S.A. § 7101(17) (defining a person in need of treatment as one who
  suffers from mental illness such that he presents a danger to himself or
  others); id. § 7504(a) (outlining the application process for a person in
  need of treatment to receive an emergency examination).  S.N. was then
  transported to the Vermont State Hospital (VSH) where he was admitted for
  an emergency psychiatric examination. 

       ¶  4.  After admission, S.N. filed for a preliminary probable-cause
  hearing, which was held within the statutorily required period.  See id. §
  7510 (mandating that a petition for a preliminary hearing be filed within
  five days of admission for an emergency examination and that the hearing be
  held within three days of the date the petition was filed).  At the
  hearing, the State presented evidence of the mental-health professional's
  discussions with S.N.'s friends and the VSH director's observations of S.N.
  while hospitalized.  The family court concluded that the evidence was not
  enough to show probable cause to admit S.N. because the mental-health
  professional's testimony was hearsay and the director's interactions with
  S.N. occurred after he was in custody.  The court also stated that evidence
  of S.N's mental illness and his act of driving a car while unmedicated was
  insufficient to support a finding of probable cause that S.N. was a danger
  to himself or others.  The court ordered S.N. discharged and returned to
  his vehicle or home.  S.N. returned to his home in New York, and the State
  filed this appeal.  

       ¶  5.  We first address S.N.'s argument that the State's appeal is
  moot.  Before we can reach  the State's substantive issues, there must be
  either a "live" controversy, or the parties must have a "legally cognizable
  interest in the outcome" of the case throughout the entire proceeding.  In
  re P.S., 167 Vt. 63, 67, 702 A.2d 98, 100 (1997).  When the State filed its
  appeal, S.N. had been released from VSH and was no longer in Vermont. 
  Therefore, a ruling from this Court would not affect S.N.'s custodial
  status and is moot unless it falls under an exception to the mootness
  doctrine.
    
       ¶  6.  We have previously recognized an exception to the mootness
  doctrine for cases that are capable of repetition, yet likely to evade
  review.  P.S., 167 Vt. at 67-68, 702 A.2d  at 101.  The State contends that
  this is such a case, and that we should therefore consider the merits of
  its appeal despite the lack of a live controversy here.  Alternatively, the
  State urges us to adopt a public-interest exception to the mootness
  doctrine, despite our historic reluctance to do so.  
   
       ¶  7.  The narrow exception to the mootness doctrine for situations
  capable of repetition yet evading review applies where: (1) the challenged
  action ceases before it is fully litigated, and (2) there is a reasonable
  expectation that the individual will be subject to the same action again. 
  Id. at 67-68, 702 A.2d  at 101.  Typically, then, the exception applies
  where the subject of an adverse action or order below seeks redress where
  it would otherwise be unavailable due to the short duration of the action
  or situation at issue.  See, e.g., P.S., 167 Vt. at 67-68, 702 A.2d  at 101 
  (considering merits of case despite lack of live controversy where patient
  was likely to confront situation leading to revocation of her
  nonhospitalization order again); State v. Condrick, 144 Vt. 362, 363-64,
  477 A.2d 632, 633 (1984) (considering case despite lack of live controversy
  where defendant's ninety-day commitment order was discharged but likely to
  recur).  There is no indication that S.N. will return to Vermont such that
  these same parties will be involved in similar litigation in the future. 
  S.N. is a resident of New York with no established history of travel or
  connection to Vermont.  Even if S.N. returns to Vermont, however, there is
  no evidence he will arrive unmedicated and be a danger to himself or
  others.  While the State claims that S.N. is likely to return to Vermont
  because he believes he can avoid medication and involuntary treatment in
  the state, this is merely hypothetical, and it is equally plausible that
  S.N.'s apprehension at the rest stop will deter him from returning
  unmedicated for fear that he may be subject to similar mental health
  proceedings.  See In re Green Mountain Power Corp., 148 Vt. 333, 335, 532 A.2d 582, 584 (1987) (describing a reasonable expectation as more than a
  "theoretical possibility" of the situation's recurrence).  

       ¶  8.  Nevertheless, the State asserts that the Court should hear
  its appeal simply because, by virtue of its position as a frequent
  prosecutor of involuntary treatment cases, it is bound to encounter the
  same evidentiary issues encountered at S.N.'s probable-cause hearing. 
  Despite the State's inability to fully resolve the evidentiary issues
  attendant to preliminary hearings under 18 V.S.A. § 7510, our review of the
  court's evidentiary rulings at S.N.'s hearing would result in the
  quintessential advisory opinion, as a decision in favor of the State would
  have no bearing on S.N. whatsoever.  Here, the State is not the subject of
  an adverse order affecting its legal rights, and therefore it cannot in
  earnest argue that it has a legally cognizable interest in this litigation
  merely because it will litigate preliminary hearings in the future.  Cf. In
  re PCB File No. 92.27, 167 Vt. 379, 380-81, 708 A.2d 568, 569-70 (1998)
  (holding that exception applied where bar counsel was subject to adverse
  discovery order and another Professional Conduct Board hearing panel had
  directed a similar order to bar counsel in another matter).  If we were to
  accept the State's argument, we would be applying the literal meaning of
  the words "capable of repetition, yet evading review" entirely outside of
  the context of the exception's purpose-to provide an avenue for legal
  redress where there is indeed a live controversy despite the short duration
  of the action or situation at issue.  Thus, the fact that the State will in
  future be a party to preliminary hearings under § 7510, alone, is an
  insufficient basis upon which to review a moot case.
        
       ¶  9.  Alternatively, the State argues that we should review the
  trial court's order because it is in the public interest to do so.  In
  jurisdictions recognizing a public-interest exception to the mootness
  doctrine, the issues presented to the court generally must be substantial,
  pressing, and likely to recur to qualify for the exception.  See, e.g.,
  Hendrick-Koroll v. Bagley, 816 N.E.2d 849, 851 (Ill. App. Ct. 2004)
  (stating that "moot issues may be reviewed under [the] public interest
  exception when there is a substantial public or private question involved,
  an authoritative determination is required for future guidance, and the
  issue is likely to recur"); Proctor v. Butler, 380 A.2d 673, 675 (N.H.
  1977) (finding pressing issue of public interest where courts were applying
  inconsistent standards of proof for the same curtailment of personal
  liberty through involuntary commitment), overruled on other grounds by In
  re Sanborn, 545 A.2d 726 (N.H. 1988).  The State argues that this case
  meets those criteria, as the issue of the evidentiary requirements at
  preliminary hearings under § 7510 is both of substantial public importance
  and likely to recur.  Specifically, the State asserts that application of
  the rules of evidence will force it to prove the need for treatment at
  probable-cause hearings, and if it fails to do so, individuals who should
  otherwise receive treatment will be released despite the State's ability to
  gather sufficient evidence by the date of final hearing.  While this may
  indeed be an important issue, we nonetheless decline to adopt the
  public-interest exception, as the exception would almost certainly swallow
  the rule.  We can hardly imagine a state action that is not of substantial
  public significance and would not, therefore, qualify for this exception. 
  More importantly, however, the State's request is not within our
  constitutional authority.  The Vermont Constitution confers judicial
  authority only to "to determine actual controversies arising between
  adverse litigants," and issuing an advisory opinion, even based on
  public-interest considerations, would exceed our constitutional mandate. 
  In re Constitutionality of House Bill 88, 115 Vt. 524, 529, 64 A.2d 169,
  172 (1949) (citations omitted).  Thus, we once again reject a catch-all
  public-interest exception to the mootness doctrine.  See In re M.A.C., 134
  Vt. 522, 523, 365 A.2d 254, 255 (1976) (per curiam) (declining to adopt the
  public-interest exception); In re Moriarty, 156 Vt. 160, 164, 588 A.2d 1063, 1065 (same).  

       ¶  10.  Without a live controversy or applicable exception to the
  mootness doctrine, we decline to address the State's substantive arguments.   

       Dismissed.  


                                       BY THE COURT:



                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       John A. Dooley, Associate Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Brian L. Burgess, Associate Justice