A Primer of Involuntary Commitment, Judicial Questioning, and a new Standard of Review

 In re: JK (ICA June 10, 2021)

Background. JK was examined at the emergency room by Dr. Michael McGrath in Kona. JK’s family reported that he had been acting bizarre, not sleeping, and was possibly dangerous. Dr. McGrath developed a working diagnosis that JK had manic bipolar disorder and certified him for involuntary hospitalization. The State’s Department of Health petitioned the family court with the Hon. Judge Aley Auna, Jr. presiding for involuntary commitment. A hearing was held to determine the issue.

 

Dr. McGrath and JK’s spouse testified. The family court also questioned Dr. McGrath and JK’s spouse after the parties and allowed further questioning. The family court found sufficient evidence to keep JK in the hospital against his will by finding him mentally ill and imminently dangerous to himself and others. JK appealed.

 

The Mootness Doctrine. The State argued that the issues in this appeal were moot because JK has already been released from the hospital. Mootness ensures “that the adversary system, once set in operation, remains properly fueled. The doctrine seems appropriate where events subsequent to the judgment of the trial court have so affected the relations between the parties that the two conditions for jusiticiablity relevant on appeal—adverse interest and effective remedy—have been compromised.” Hamilton ex rel. Lethem v. Lethem, 229 Hawai'i 1, 5, 193 P.3d 839, 843 (2008).

 

JK countered that the “collateral consequences” exception to mootness applies:

 

To invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need no demonstrate that these consequences are more probable than not. . . . Where there is no direct practical relief available from the reversal of the judgment . . . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future.

 

Id. at 8, 193 P.3d at 846. Harm to one’s reputation was enough to trigger the exception. Id. at 9-11, 193 P.3d at 847-849.

 

The ICA held that the collateral consequences exception applied here. There was a reasonable possibility that the family court’s findings that JK was mentally ill and imminently dangerous to himself and others would cause harm to JK’s reputation. Accordingly, it resolved the issues presented even though JK was out of the hospital.

 

The Judge’s Questions to the Witnesses were not in Error. JK first challenged the judge’s questioning of the witnesses. Trial court judges have the discretion to question a witness. State v. Sprattling, 99 Hawai'i 312, 317, 55 P.3d 276, 281 (2002). When the judge is the factfinder, “there is no possibility of jury bias; under the circumstances, the judge’s duty to clarify testimony and fully develop the truth in the case becomes particularly heightened.” Id. at 322-323, 55 P.3d at 286-287. Nevertheless, “the trial court must not exhibit bias or advocate for either party” and cannot “conduct an unduly extended examination of any witness.” Id.

 

Here, the family court questioned Dr. McGrath and JK’s spouse. The questions to Dr. McGrath pertained to an incident when JK spoke of using a straight edge razor and putting his finger through metal. The family court’s questions for JK’s spouse related to whether he would be going home. The ICA held that these questions did not arise to an abuse of discretion.

 

Involuntary Commitment Basics. Involuntary commitment requires proof beyond a reasonable doubt that the person is “mentally ill or suffering from substance abuse” and clear and convincing evidence that the person is “imminently dangerous to self or others” and “is in need of care or treatment or both, and there is no suitable alternative available through existing facilities and programs which would be less restrictive than hospitalization.” HRS §§ 334-60.2 and 334-60.5(j).

 

Here, the ICA held that the family court did not err in finding beyond a reasonable doubt that JK was suffering from a mental illness, but it did err in finding clear and convincing evidence that JK was a danger to himself or others.

 

A New Standard Review for Findings of Fact Proven by Clear and Convincing Evidence. Clear and convincing evidence is higher standard of proof than preponderance but lower than proof beyond a reasonable doubt:

 

It is that degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established, and requires the existence of a fact be highly probable.

 

Masak v. Gen. Motors Corp., 71 Haw. 1, 15, 780 P.2d 66, 574 (1989). According to the ICA, Hawai'i has not “addressed the standard of review for a finding of fact that must be based upon ‘clear and convincing evidence.’” And so the ICA adopted the standard from California in Conservatorship of O.B., 470 P.3d 41 (Cal. 2020):

 

When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence and drawn reasonable inferences from the evidence.

 

Id. at 55.

 

Not Enough Proof of Imminent Danger. A person is “imminently dangerous to self or others” when “without intervention, the person will likely become dangerous to self or dangerous to others within the next forty-five days.” HRS § 334-1. “Dangerous to self” requires proof that the person threatened or attempted suicide or serious bodily harm or “it is probable that death, substantial bodily injury, or serious physical debilitation or disease will result unless adequate treatment is afforded.” HRS § 334-1. “Danger to others” means a likelihood to commit “substantial physical or emotional injury on another, as evidenced by a recent act, attempt or threat.” Id.

 Here, Dr. McGrath testified that JK’s lack of insight, his disturbing behavior, and refusal to take his medication would result in “some harm.” There was no other evidence as to what he meant by “some harm.” Nor was there any evidence of a “danger to self.” The closest was testimony about needing a straight edge razor to show that he could put his finger through metal, but there was no evidence of it being actual danger. In the end, the ICA held that there was not clear and convincing evidence to support the findings that JK was imminently dangerous.

 

Is there a Difference Between the Standard of Review for Findings of Fact by Proof of Clear and Convincing Evidence and the Clearly Erroneous Standard of Review? The ICA has adopted a new standard of review when it reviews the lower court’s finding of fact by proof of clear and convincing evidence. It requires “substantial evidence” and is highly deferential to the lower court.

 

The already-existing standard of review for findings of fact in general are reviewed under the “clearly erroneous” standard. A finding of fact is “clearly erroneous” when it lacks “substantial evidence” to support it. Birano v. State, 143 Hawai'i 163, 181, 426 P.3d 387, 405 (2018). “Substantial evidence” means “credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” In re: Grievance Arbitration Between SHOPO and County of Kauai, 135 Hawai'i 456, 462, 353 P.3d 998, 1004 (2015).

 

Is a new standard of review different? The newly adopted standard of review also calls for “substantial evidence” and is highly deferential to the lower court—two components in the already-existing standard of review for findings of fact. It seems to be a jumble of the clearly erroneous standard of review and the definition of clear and convincing evidence. Whether this will change the way appellate courts review findings of fact in the future is anyone’s guess.