Richard Dickinson, III v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. 07355
RICHARD DICKINSON, III,
APPELLANT;
VS.
STATE OF ARKANSAS,
Opinion Delivered JANUARY 10, 2008
APPEAL FROM THE DREW COUNTY
CIRCUIT COURT, FIFTH DIVISION;
NO. PR8571;
HON. TERESA FRENCH, JUDGE;
APPELLEE;
APPEAL DISMISSED.
DONALD L. CORBIN, Associate Justice
The instant case is a nomerit appeal from a temporary civilcommitment order filed
by counsel for Appellant Richard Dickinson, III, pursuant to Anders v. California, 386 U.S.
738 (1967). The appeal was certified to this court by the Arkansas Court of Appeals for a
determination of whether the Anders procedure is applicable in the context of a civil
commitment order; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 12(b)(1) and (5).
Because we hold that the order committing Dickinson for seven days is moot, we dismiss the
instant appeal.
On January 8, 2007, Gloria Dickinson, Dickinson’s mother, filed a petition in circuit
court, alleging that her son was addicted to drugs and needed to be committed to a treatment
facility. According to the petition, Dickinson believed people were trying to kill him, had
a gun in his possession, and had checked himself into jail. The petition further stated that
Dickinson admitted to his mother that he used crystal methamphetamine. Following a
preliminary hearing, an order for immediate detention for seventytwo hours was issued,
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pursuant to Ark. Code Ann. § 2047210 (Repl. 2001).
In accordance with the procedures set forth in Ark. Code Ann. § 2047209 (Repl.
2001), a sevenday commitment hearing was held on January 11, 2007. Gloria testified at
the hearing that her son was paranoid and felt that there were people trying to kill him. He
also believed that there were people in his attic who were putting poison in his vent. As a
result, Dickinson covered his vent with duct tape. At one point, he also believed that people
put a bomb in his room, so he tore apart his room’s sheetrock. Gloria also testified that she
came home to find Dickinson on the roof with a gun and that after he came down from the
roof, he went into the backyard to find the “killers.” Finally, Gloria stated that her son was
hospitalized for mental problems in 1985 and was subsequently diagnosed with a drug
induced psychosis.
Dana Williams, a therapist with Delta Counseling, testified that she evaluated
Dickinson during his temporary detention to determine whether he had a mental illness.
According to Williams, Dickinson exhibited signs of paranoia, showing her a list of people
who were after him, referring to the Da Vinci Code and the end of the world, and stating that
he was selling marijuana to the sheriff for money to help his family. After determining there
was psychosis present, Williams diagnosed Dickinson as suffering from a psychotic disorder,
not otherwise specified. She also recommended that he be hospitalized for a period of seven
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No appeal was taken from this order.
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days so that he could be evaluated to determine whether he needed treatment. A copy of
Williams’s report was introduced into evidence at the hearing.
Dickinson also testified at the hearing, stating that he did believe people were out to
get him and that he heard people in his attic. He also stated that he believed himself to be
Jesus Christ and offered into evidence, over the objection of his counsel, several pages of
handwritten documents he claimed proved him to be Jesus.
At the conclusion of the hearing, the circuit court ruled from the bench that Dickinson
was very paranoid and further evaluation was necessary. The circuit court subsequently
entered a written order, pursuant to Ark. Code Ann. § 2047207 (Supp. 2005), finding that
there was probable cause to believe that Dickinson suffered from a mental illness, disease,
or disorder that caused him to pose a clear and present danger to himself or others. The
order further provided that Dickinson was to be involuntarily admitted to the Arkansas State
Hospital or other appropriate facility for a period of seven days so that an evaluation could
be performed to determine whether treatment for a mental illness was appropriate.
Counsel for Dickinson filed a notice of appeal from the January 11 commitment order
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on January 29, 2007. He then simultaneously filed a motion seeking to be relieved as
counsel for Dickinson and a nomerit brief, utilizing the Anders procedures promulgated by
this court in Ark. Sup. Ct. R. 43(j) for the withdrawal of counsel “for a defendant in a
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Prior to counsel’s filing of the notice of appeal, the circuit court held a hearing on January 17, 2007,
pursuant to Ark. Code Ann. § 2047214 (Repl. 2001), to determine whether Dickinson needed to be held for
an additional period of fortyfive days for purposes of treatment. A written order involuntarily admitting
Dickinson to an appropriate treatment facility was filed of record on February 5, 2007. No notice of appeal
was ever filed from the February 5 order.
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criminal or a juvenile delinquency case.” Dickinson was given thirty days to file a pro se
response to the nomerit brief but failed to do so. The State then submitted a letter to this
court’s clerk indicating that it would not file a responsive brief, because there was no
pleading to which it could respond. The State also called into question counsel’s authority
to apply the Anders procedures to an appeal from a civilcommitment order.
As previously stated, we accepted certification of this case in order to determine
whether the Anders procedures are applicable in this case. As a threshold matter, however,
we must first determine whether the appeal that is before us is moot. As a general rule, the
appellate courts of this state will not review issues that are moot. Kinchen v. Wilkins, 367
Ark. 71, 238 S.W.3d 94 (2006). To do so would be to render advisory opinions and this we
will not do. Id. A case becomes moot when any judgment rendered would have no practical
legal effect upon a thenexisting legal controversy. Shipp v. Franklin, 370 Ark. 262, ___
S.W.3d ___ (2007). In other words, a moot case presents no justiciable issue for
determination by the court. Id.; Martin Farm Enters., Inc. v. Hayes, 320 Ark. 205, 895
S.W.2d 535 (1995). Furthermore, this court has held that courts do not sit for the purpose of
determining speculative and abstract questions of law or laying down rules for future
conduct. Tsann Kuen Enters. Co. v. Campbell, 355 Ark. 110, 129 S.W.3d 822 (2003).
This court has recognized two exceptions to the mootness doctrine, one of which
involves issues that are capable of repetition, yet evade review. See, e.g., Cotten v. Fooks,
346 Ark. 130, 55 S.W.3d 290 (2001). The other mootness exception concerns issues that
raise considerations of substantial public interest which, if addressed, would prevent future
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litigation. Id. We hold that the instant appeal does not fall within either of the exceptions
to the mootness doctrine.
First, the issue presented here is whether the circuit court erred in entering the seven
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day involuntary commitment order. This is not an issue that is capable of repetition yet
evading review. Here, we have a notice of appeal from a sevenday commitment order filed
after the court held a fortyfive day hearing and committed Dickinson for treatment. There
was no appeal of the subsequent fortyfive day commitment order, and the fortyfive days
in which Dickinson was to be treated have passed. Moreover, the temporary order
committing Dickinson for seventytwo hours was also never appealed. Based on the record
before us, no further action was taken by the circuit court after the passage of those fortyfive
days. Under these facts, we cannot say that this case is capable of repetition yet evading
review.
Second, while the issue of whether Anders procedures should be utilized in appeals
from commitment orders may at some point raise considerations of substantial public
interest, the posture of the present appeal does not lend itself to such a conclusion. Even if
we assume that counsel filed the nomerit brief from the sevenday order because his client
instructed him to appeal that order, Dickinson never filed any response to the nomerit brief,
3
Even though this court accepted certification of this case on the issue of whether the Anders
procedures should be extended to appeals from civilcommitment orders, we are precluded from addressing that
specific issue on appeal. It is a wellsettled principle of appellate law that this court will not consider an
argument unless it has been properly developed. Hanlin v. State, 356 Ark. 516, 157 S.W.3d 181 (2004).
Likewise, we do not make a party’s argument for him or her. Id. In the instant case, no party raises the issue
of whether the Anders procedure is applicable to this appeal. Moreover, we do not have the benefit of a brief
from the State addressing such an issue.
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even though he was given thirty days in which to file a pro se brief. Because no pro se brief
was ever filed, the State had no pleading to which it could respond. Thus, the procedural
posture of this case is that counsel for Dickinson has assumed that Anders applies and seeks
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to be relieved on the basis that his client has no meritorious basis for an appeal. As a result,
the issue of whether the Anders procedures should be extended to situations involving
appeals from civilcommitment orders has not been properly addressed to this court by any
party. Thus, the case as it is now before us does not present an issue of substantial public
interest.
Accordingly, we dismiss the instant appeal as moot. The motion to be relieved as
counsel is also moot.
Appeal dismissed.
BROWN and IMBER, JJ., dissent.
IMBER, J., dissenting. I respectfully, but strongly, disagree with the majority opinion.
In dismissing the instant appeal as moot, the majority refuses to address an important issue:
whether the right to counsel of persons sought to be involuntarily committed should be
protected by the Anders procedures. Under our prior case law, the instant appeal fits
squarely into both recognized exceptions to the mootness doctrine; thus, this case should be
decided on its merits.
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Additionally troubling is the fact that there is no order in the record before us finding Dickinson
indigent or appointing counsel to represent him. The only indication that counsel was in fact appointed and
not retained is counsel’s statement in his motion to be relieved as counsel that he was appointed to represent
Dickinson at the sevenday commitment hearing.
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We have stated that the choice of mootness is ours to make. Owens v. Taylor, 299
Ark. 373, 772 S.W.2d 596 (1989). Where considerations of public interest or prevention of
future litigation are present, we may elect to settle an issue, even though moot. Id. We have
been faced many times with the question of whether to review a case in spite of the fact that
the appellant can be afforded no relief based on our decision. In those situations, we have
faithfully applied the two exceptions to the mootness doctrine, at least until the majority’s
opinion today.
For example, we have reviewed expired temporary guardianships on the basis that
such orders are capable of repetition yet evade review. See Von Luce v. Rankin, 267 Ark.
34, 588 S.W.2d 445 (1979). We cited as our rationale the likelihood of such incidents being
repeated and the unlikelihood that a decision can be reached on appeal before a temporary
guardianship is terminated. Id. We have furthermore chosen to review a case in which an
elected official challenged his removal from office due to his felony convictions, despite the
fact that not only had his criminal appeal run its course, but he had also been defeated in a
subsequent election. See Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989). We held
that the appeal fell under both mootness exceptions and stated that “when the case involves
the public interest, or tends to become moot before litigation can run its course, or a decision
might avert future litigation, we have, with some regularity, refused to permit mootness to
become the determinant.” Id. at 572, 781 S.W.2d at 15.
Even more troubling than the majority’s refusal to apply our general mootness
exceptions to the present case is the fact that we have applied mootness exceptions several
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times to appeals from temporary civilcommitment orders like the one at issue here. The
majority chooses to ignore those decisions. Our justification was set forth in an appeal from
an expired fortyfiveday commitment order:
This case “is moot in the sense that we cannot now afford appellant any relief,
but it is not moot in the sense that it is important to decide a practical question
of great public interest.” As appellant points out, the involuntary commitment
statutes provide for only short term involuntary commitment such that most
persons committed under these statutes will have been released before their
appeals can be decided. Whether a person can be held involuntarily when the
petition for involuntary commitment is not filed within the time provided in
the statute is a practical question of great public interest. For that reason, we
address appellant’s substantive argument.
Campbell v. State, 311 Ark. 641, 643644, 846 S.W.2d 639, 640641 (1993) (internal
citations omitted) (quoting Campbell v. State, 300 Ark. 570, 572, 781 S.W.2d 14, 15 (1989)).
This rationale was cited in another appeal from an expired fortyfiveday commitment order,
where we further noted, “Persons committed under a fortyfiveday civil commitment order
would never be able to appeal those orders because they will likely have been released from
the order before their appeals can reach this court.” Chatman v. State, 336 Ark. 323, 326,
985 S.W.2d 718, 720 (1999). We also applied the exceptions in Buchte v. State, 337 Ark.
591, 990 S.W.2d 539 (1999), another appeal from an expired fortyfiveday commitment
order. I know of only one case in which this court has declined to apply the mootness
exceptions to a temporary civilcommitment order, but we did so because the issues were not
preserved for appellate review. Smedley v. Smedley, 319 Ark. 421, 892 S.W.2d 273 (1995).
The majority offers no persuasive reasoning for declining to regard this case law as
controlling or for refusing to apply the wellsettled exceptions to the instant appeal. With
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regard to the exception for issues that are capable of repetition but evade review, the majority
seems to say that the exception is inapplicable because Dickinson failed to appeal both the
seventytwohour commitment order and the fortyfiveday commitment order. In response,
I point to the cases cited above that have permitted appeals of fortyfiveday commitment
orders and note that the rationale applies even more fittingly to appeals of sevenday
commitment orders. If an appellant cannot pursue an appeal of a fortyfiveday commitment
order because he or she will be released from the order by the time an appeal is heard, then
he or she surely cannot appeal a sevenday commitment order. Thus, the issue will always
evade review. Moreover, the issue presented here – whether an attorney who believes an
appeal from a civilcommitment order would be without merit should be able to rely on the
Anders procedures – is capable of repetition in future cases. The requirement that the issue
be capable of repetition does not insist on the potential for repetition in the same case; rather,
it insists on the potential for repetition in similar future cases. See Von Luce v. Rankin,
supra.
The majority declines to apply the exception to issues that are of substantial public
interest, noting that Dickinson failed to file a pro se brief and that the State had no pleading
to which it could respond. I fail to see how the procedural posture of this appeal makes the
issue presented any less important. The distinction articulated by the majority merely seems
to be a means to avoid a decision on the question of whether the Anders procedures should
apply to civilcommitment proceedings. The United States Supreme Court decided to require
nomerit briefs in an attempt to “assure penniless defendants the same rights and
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opportunities on appeal – as nearly as is practicable – as are enjoyed by those persons who
are in a similar situation but who are able to afford the retention of private counsel.” Anders
v. California, 386 U.S. 738, 745 (1967). This goal, in the context of involuntary
commitments, is surely one of substantial public interest.
As for the majority’s contention that the issue of the applicability of the Anders
procedures has not been properly developed, I point out that this court did not hesitate to
address the issue in the context of a similar situation, in LinkerFlores v. Ark. Dep’t of
Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). In LinkerFlores, we were faced with
the question of whether the Anders procedures should be applied to counsel for indigent
parents in terminationofparentalrights appeals. Id. However, we did not come to address
the issue as a result of it being raised by the parties. Instead, counsel for the appellant
submitted an unaccompanied motion to be relieved as counsel on the basis that she could
find no meritorious grounds for appeal. See LinkerFlores v. Ark. Dep’t of Human Servs.,
356 Ark. 369, 149 S.W.3d 884 (2004) (per curiam). This court denied the motion because
the appellant was entitled to representation on appeal and, on our own motion, ordered the
parties to brief the issue of whether counsel representing a parent in a termination proceeding
should be required to file a nomerit brief comparable to that required under Anders where
there appears to be no meritorious ground for reversal. Id. In the instant case, counsel for
the appellant has submitted a motion to be relieved as counsel, in addition to a nomerit brief.
Whether we choose to proceed on our own or require the parties to brief the issue of Anders
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applicability, we should decide this case on its merits. The fact that the parties have not yet
argued the issue to this court is not dispositive.
Finally, I underline the point that the United States Supreme Court has characterized
involuntary commitment as a “massive curtailment of liberty,” Humphrey v. Cady, 405 U.S.
504, 509 (1972), for which due process protection is required. See Addington v. Texas, 441
U.S. 418 (1979). To hold that the instant appeal and other procedurally similar cases are
moot would obliterate the right to appeal, and to suggest that the statutory procedure
providing for a subsequent, fortyfiveday commitment somehow inoculates restrained
persons from any harm imposed by the sevenday commitment would be to deny due process
protection. A restraint on liberty is no less offensive or harmful simply because it lasts only
for seven days.
The sevenday commitment order is appealable by statute. Ark. Code Ann. § 2047
217 (Repl. 2001). Yet, an appeal cannot possibly be resolved within seven days’ time.
Thus, the majority’s opinion completely eliminates the statutorilyguaranteed right to an
appeal. Because the issues presented in an appeal from a sevenday commitment order are
capable of repetition but evade review, we should hear such appeals pursuant to our well
settled exception to the mootness doctrine. Furthermore, the instant appeal presents an issue
of substantial public interest – whether the right to counsel of persons sought to be
involuntarily committed should be protected by the Anders procedures. For the abovestated
reasons, I firmly believe that the majority has erred in dismissing this appeal as moot when
the case should be decided on its merits. I respectfully dissent.
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BROWN, J., joins this dissent.
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