In the Matter of B.B., Alleged to Be Seriously Mentally Impaired, B.B.

                IN THE SUPREME COURT OF IOWA
                               No. 12–0158

                           Filed January 4, 2013


IN THE MATTER OF B.B., Alleged to be
Seriously Mentally Impaired,

B.B.,

        Appellant.


        Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



        An appellant appeals a district court order finding him “seriously

mentally impaired.” AFFIRMED.



        Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman &

Hisey, Sioux City, for appellant.



        Thomas J. Miller, Attorney General, Gretchen Witte Kraemer,

Assistant Attorney General, Patrick A. Jennings, County Attorney, and

Joshua D. Widman, Assistant County Attorney, for appellee.
                                     2

APPEL, Justice.

      In this case, we must determine whether an appeal from a finding

of “serious mental impairment” resulting in an involuntary commitment

under Iowa Code chapter 229 (2011) becomes moot when the appellant is

released and the proceedings are terminated.          We agree with the

jurisdictions that hold such an appeal is not moot.         On the merits

presented, we conclude substantial evidence supports the conclusion of

the district court that the appellant was “seriously mentally impaired.”

We therefore affirm the judgment of the district court.

      I. Factual and Procedural Background.

      On December 14, 2011, police brought B.B. to the emergency room

at Mercy Medical Center in Sioux City after he entered a restricted area

at an Iowa Air National Guard base.         A judge then ordered B.B.’s

emergency hospitalization pursuant to Iowa Code section 229.22(3). The

judge found probable cause to believe B.B. was “seriously mentally

impaired” and “a threat to harm himself or others” because B.B. was in a

very agitated and confused state when police brought him to the

hospital, was “making wild threats to harm himself and others,” and

required “[three] police officers to keep him subdued.”

      Shortly after B.B.’s emergency hospitalization, an application

alleging serious mental impairment pursuant to Iowa Code section 229.6

was filed with the District Court for Woodbury County. Two affidavits

accompanied the application.       The first affidavit, made by Marlene

Sorensen, stated B.B. attempted to board a plane in Omaha, Nebraska,

with a fake passport. It further indicated that B.B. then drove to Sioux

City, Iowa, and tried to follow a worker into a secured area at the air base

in Sergeant Bluff. The affidavit further stated B.B. was paranoid when

authorities brought him into the hospital.     A second affidavit, filed by
                                         3

Jane Hoffman, was substantially the same, except it stated that B.B.

attempted to board the plane with a fake boarding pass instead of a fake

passport and also stated B.B.’s wife “fears that he might harm her or

their children if released” from the hospital.

      A physician’s report was also attached to the application.                The

report, authored by Dr. Ejiro Idahosa, a psychiatrist, diagnosed B.B. with

psychosis, not otherwise specified, and noted symptoms of paranoia.

Dr. Idahosa   concluded       B.B.    lacked   sufficient    judgment   to    make

responsible decisions with respect to his hospitalization or treatment

because of the mental illness. The report further stated that, because of

his mental illness, if left at liberty without treatment B.B. was more likely

to physically injure himself or others, to inflict serious emotional injury

on members of his family or others who lacked a reasonable opportunity

to avoid contact with him, and to be unable to satisfy his need for

nourishment, clothing, essential medical care, or shelter such that it

made it likely he would suffer physical injury, debilitation, or death.

Dr. Idahosa   also    noted    B.B.    had     a   history   of   mental     illness,

recommended B.B. return to inpatient treatment for further stabilization,

and opined B.B. would need outpatient treatment upon release for

medication management and therapy.

      A hearing was held on the application on December 20.                     The

Sorensen and Hoffman affidavits and Dr. Idahosa’s report were admitted

into evidence.       Dr. Idahosa testified that B.B. met the statutory

requirements as one who is seriously mentally impaired. She explained

B.B. was a danger to himself or others based on B.B.’s irritability,

arguments with his wife, and symptoms of paranoia. Elaborating, she

stated that B.B. “feels people are trying to do something to him,” that he

believes people are trying to remove his brain or other organs from his
                                      4

body, and that his wife “is afraid for him to come home.” Dr. Idahosa

further stated that “[B.B.’s wife] has a restraining order and he has

nowhere to go.”    Dr. Idahosa noted the observations made in the two

affidavits in the application.   She testified that B.B.’s wife advised her

B.B. had a history of paranoia that had been ongoing for twelve years

and that recently the symptoms were “the worst [B.B.’s wife] has seen.”

Dr. Idahosa also opined B.B. did not have sufficient judgment to make

responsible decisions with regard to his hospitalization or treatment. In

Dr. Idahosa’s opinion, hospitalization was the least restrictive form of

treatment available for B.B. at that time.

      B.B. also testified. B.B. denied attempting to board a flight with a

fake passport. B.B. asserted it was all a misunderstanding because he

found some boarding passes that did not belong to him and he was

simply attempting to give them to an airline employee. He then left the

Omaha airport and drove to the air base in Sergeant Bluff because he

was emotional due to marital problems and “was considering getting into

the National Guard.”     B.B. testified that he accidentally drove into a

secured area. He further stated he did not believe he suffered from a

mental illness or was a danger to himself or others.

      The district court concluded the record established by clear and

convincing evidence that B.B. was seriously mentally impaired.           The

court based its decision on the report and testimony of Dr. Idahosa,

which it found credible; admissions made by B.B.; and the Sorensen and

Hoffman affidavits. The court also concluded that B.B. lacked sufficient

judgment to make responsible decisions regarding his hospitalization

and treatment, illustrated by his failure to recognize that he had a

mental illness, and that B.B. was likely to inflict serious injury to himself

or others if he was not hospitalized. The court stated B.B.’s testimony
                                        5

“just does not make sense on a great part of it” and that his testimony

about his trips to the airport and air base was not credible. The court

entered its order that day.     B.B. appealed, alleging the district court’s

finding that B.B. was seriously mentally impaired was not supported by

substantial evidence.

      During the pendency of the appeal, B.B. was released to outpatient

treatment at the University of Nebraska Medical Center (UNMC) in

Omaha. Because an entry in the court file indicated B.B. was no longer

a patient at UNMC as of January 28, 2012, and because B.B. did not

have family or employment connections in Woodbury County, the State

filed a motion to discharge and terminate the proceedings. The district

court granted the motion, terminated the proceedings, discharged B.B.

from court-ordered treatment and placement, and stated interested

parties could reinitiate court proceedings if B.B. returned to Iowa and

was believed to be seriously mentally impaired.

      This proceeding is not B.B.’s first involuntary commitment

proceeding.    He   testified    that   he   was   involuntarily   committed

approximately fourteen years ago for depression with psychotic features.

      II. Standard of Review.

      We review challenges to the sufficiency of the evidence in

involuntary commitment proceedings for errors at law. In re J.P., 

574 N.W.2d 340, 342

 (Iowa 1998). The allegations made in an application for

involuntary commitment must be proven by clear and convincing

evidence. 

Id.

 Clear and convincing evidence is less burdensome than

evidence establishing proof beyond a reasonable doubt, but more

burdensome than a preponderance of the evidence. 

Id.

 “It means that

there must be no serious or substantial doubt about the correctness of a
                                            6

particular conclusion drawn from the evidence.”                     

Id.

 (citation and

internal quotation marks omitted).

       III. Discussion.

       We are confronted with two issues in this appeal. First, we must

address whether an appeal from a finding that a person is seriously

mentally impaired under chapter 229 becomes moot when the person is

released      from    involuntary    commitment        and    the    proceedings      are

terminated. 1        Second, if the matter is not moot, we must determine

whether the district court’s finding that B.B. is seriously mentally

impaired is supported by substantial evidence.

       A. Mootness. Ordinarily, an appeal is moot if the “issue becomes

nonexistent or academic and, consequently, no longer involves a

justiciable controversy.” State v. Hernandez-Lopez, 

639 N.W.2d 226, 234

(Iowa 2002). We will generally not review moot issues, but our caselaw

and that of other jurisdictions recognize exceptions.                Relevant to this

appeal, one exception permits appellate review of otherwise moot issues

when the issue is one of broad public importance likely to recur. Id.; In

re M.T., 

625 N.W.2d 702, 704

 (Iowa 2001). Another exception provides

that an appeal is not moot if a judgment left standing will cause the

appellant to suffer continuing adverse collateral consequences.                      See

Sibron v. New York, 

392 U.S. 40

, 53–57, 

88 S. Ct. 1889

, 1898–1900, 

20 L. Ed. 2d 917

, 929–31 (1968).

       For example, in M.T. we stated that an appeal from an involuntary

commitment was moot when the party had been released from inpatient

treatment, the State no longer sought to have the party committed for

       1For  a discussion of the history of involuntary commitment under chapter 229,
see Note, Involuntary Hospitalization of the Mentally Ill in Iowa: The Failure of the 1975
Legislation, 

64 Iowa L. Rev. 1284

 (1979).
                                             7

inpatient treatment, and the party did not challenge his commitment to

outpatient treatment. 

625 N.W.2d at 705

. Nonetheless, we reached the

merits of whether the party’s statutory right to be present at his

involuntary commitment proceeding had been violated because it was an

issue of broad public importance capable of recurring, yet likely to evade

appellate review. 

Id.

       Similarly, B.B.’s case is arguably moot because he was no longer

subject to inpatient treatment and had been discharged from court-

ordered treatment and placement.                 B.B., however, argues his case

warrants our review because he will continue to suffer adverse collateral

consequences. 2 Although we have not yet adopted this exception to the

mootness doctrine in this context, we now hold that a party who has

been   adjudicated        seriously     mentally      impaired      and    involuntarily

committed is presumed to suffer collateral consequences justifying

appellate review.

       A number of jurisdictions recognize the notion that one who is

involuntarily committed due to a mental illness suffers collateral

consequences. See, e.g., In re Ballay, 

482 F.2d 648

, 651–52 (D.C. Cir.

1973); In re Joan K., 

273 P.3d 594

, 597–98 (Alaska 2012); In re Morris,

482 A.2d 369

, 371–72 (D.C. 1984); Bradshaw v. State, 

816 P.2d 986, 989

 (Idaho 1991); In re McCaskill, 

603 N.W.2d 326, 329

 (Minn. 1999); In

re Splett, 

572 N.E.2d 883, 885

 (Ill. 1991); In re Walter R., 

850 A.2d 346

,

349–50 (Me. 2004); In re Hatley, 

231 S.E.2d 633

, 634–35 (N.C. 1977); In

re D.B.W., 

616 P.2d 1149

, 1150–51 (Okla. 1980); State v. Lodge, 

608 S.W.2d 910, 912

 (Tex. 1980); In re Giles, 

657 P.2d 285

, 286–87 (Utah

1982); State v. J.S., 

817 A.2d 53

, 55–56 (Vt. 2002). One commonly cited

       2We   also note the parties in M.T. did not address mootness in their briefs.
                                          8

collateral consequence of involuntary commitment is the accompanying

stigma. 3 See, e.g., Joan K., 273 P.3d at 597–98; Bradshaw, 

816 P.2d at 989

; Splett, 

572 N.E.2d at 885

; D.B.W., 616 P.2d at 1150–51; Lodge, 

608 S.W.2d at 912

; J.S., 817 A.2d at 55–56.             The United States Supreme

Court relied in part on the stigmatization of being labeled mentally ill in

holding that a child has a liberty interest in not being confined

unnecessarily. See Parham v. J.R., 

442 U.S. 584, 601

, 

99 S. Ct. 2493, 2503

, 

61 L. Ed. 2d 101, 118

 (1979). The Court has also observed,

       [I]t is indisputable that involuntary commitment to a mental
       hospital after a finding of probable dangerousness to self or
       others can engender adverse social consequences to the
       individual. Whether we label this phenomena “stigma” or
       choose to call it something else is less important than that
       we recognize that it can occur and that it can have a very
       significant impact on the individual.

Addington v. Texas, 

441 U.S. 418

, 425–26, 

99 S. Ct. 1804, 1809

, 

60 L. Ed. 2d 323

, 330–31 (1979).

       In In re Guardianship of Hedin, 

528 N.W.2d 567, 574

 (Iowa 1995),

we recognized the existence of stigma in observing that one has a

protected liberty interest in not being labeled mentally ill. Many courts
rely heavily on the stigma of mental illness in holding that a case

involving an involuntary commitment is not moot simply because the

person alleged to be mentally ill has been released from commitment.

See, e.g., Joan K., 273 P.3d at 597–98; Bradshaw, 

816 P.2d at 989

;

Splett, 

572 N.E.2d at 885

; D.B.W., 616 P.2d at 1150–51; Lodge, 608



         3We acknowledge that social stigma attaching to those with mental illnesses is

unfairly prejudicial, but any potential unfairness does not eliminate the collateral
consequences of an involuntary commitment. See State v. Van Tassel, 

484 P.2d 1117, 1122

 (Or. Ct. App. 1971) (noting, in holding appeal not moot, that “[w]hether a society
should view mental illness as carrying with it more stigma than any other form of
illness, it, in fact, does”).
                                          9

S.W.2d at 912; J.S., 817 A.2d at 55–56. But see Westlake v. State, 

440 So. 2d 74, 75

 (Fla. Dist. Ct. App. 1983) (holding that an appeal is moot

despite stigma because courts look to legal consequences, not social

consequences).

       Another collateral consequence stemming from a finding that one

is mentally ill is the potential to use one’s involuntary commitment as

evidence in future proceedings.           In Ballay, the District of Columbia

Circuit explained it this way:

       Indeed, such an adjudication, while not always crippling, is
       certainly always an ominous presence in any interaction
       between the individual and the legal system. Such evidence
       will frequently be revived to attack the capacity of a trial
       witness.     Depending upon the diagnosis, it may be
       admissible for impeachment purposes. Indeed, even in a
       criminal trial it may be available to attack the character of a
       defendant if he has put character in issue.               Most
       significantly, records of commitments to a mental institution
       will certainly be used in any subsequent proceedings for civil
       commitment, a factor which may well have been influential
       in the present case.

482 F.2d at 652

. Other courts have made similar observations.                     See,

e.g., Joan K., 

273 P.3d at 597

; In re Amey, 

40 A.3d 902, 909

 (D.C. 2012);

In re Alfred H.H., 

910 N.E.2d 74, 84

 (Ill. 2009); Hatley, 231 S.E.2d at

634–35; Giles, 

657 P.2d at 287

; see also Walter R., 850 A.2d at 349–50

(holding possibility of longer commitment period following adjudication of

incompetence is a collateral consequence); In re Webber, 

689 S.E.2d 468, 474

 (N.C. Ct. App. 2009) (discussing an analogous situation involving

defendants placed on probation).

       Although persons adjudicated seriously mentally impaired suffer

the foregoing collateral consequences, 4 Iowa Code chapter 229 preserves

       4Courts have recognized other collateral consequences, such as restrictions on
voting rights, jury service, the ability to obtain a driver’s license, and adverse
employment restrictions. See In re Ballay, 

482 F.2d 648

, 651–52 (D.C. Cir. 1973); In re
                                        10

many legal rights the person previously enjoyed.               Section 229.27(1)

provides:

       Hospitalization of a person under this chapter, either
       voluntarily or involuntarily, does not constitute a finding of
       nor equate with nor raise a presumption of incompetency,
       nor cause the person so hospitalized to be deemed a person
       of unsound mind nor a person under legal disability for any
       purpose, including but not limited to any circumstances to
       which sections 6B.15, 447.7, section 488.603, subsection 6,
       paragraph “c”, sections 488.704, 597.6, 600B.21, 614.8,
       614.19, 614.22, 614.24, 614.27, and 633.244 are applicable.

Iowa Code § 229.27

(1). The South Dakota Supreme Court relied on a

similar provision in holding that an appeal of an involuntary commitment

proceeding is moot once the person is released and the proceedings are

terminated. See In re Woodruff, 

567 N.W.2d 226

, 228–29 (S.D. 1997).

The court reasoned the provision demonstrated the legislature’s intent to

protect the legal rights of persons who were involuntarily committed and

encompassed all collateral consequences alleged by the parties who had

been adjudicated mentally ill. 

Id. at 228

. The court went on to explain

that the stigma resulting from involuntary commitment was not, by itself,

sufficient to constitute a collateral consequence that would keep the

controversy alive. 

Id. at 229

.

       We disagree with the South Dakota Supreme Court insofar as it

suggests Iowa Code section 229.27(1) renders this action moot.                 The

decision in Woodruff underestimates the stigma stemming from a finding

that one is seriously mentally impaired.           Such a finding has a “very

significant impact on the individual.”        Addington, 

441 U.S. at 426

, 

99 S. Ct. at 1809

, 

60 L. Ed. 2d at 331

.           We thus agree with the many


_____________________
Joan K., 

273 P.3d 594, 597

 (Alaska 2012); In re Alfred H.H., 

910 N.E.2d 74, 84

 (Ill.
2009).
                                    11

jurisdictions that find significant the stigma associated with a finding of

serious mental impairment.

       Some courts have considered the impact of prior involuntary

commitments on the right of a person to appeal subsequent involuntary

commitment.     In Joan K., the Alaska Supreme Court concluded that

“there are sufficient general collateral consequences, without the need for

a particularized showing, to apply the doctrine in an otherwise-moot

appeal from a person’s first involuntary commitment order.” 

273 P.3d at 598

. Although the court agreed collateral consequences are presumed, it

noted that “some number of prior involuntary commitment orders would

likely eliminate the possibility of additional collateral consequences,

precluding the doctrine’s application.” 

Id.

       The Illinois Supreme Court took the opposite approach in Alfred

H.H.    The court held that the determination of potential collateral

consequences for the purposes of mootness must be made on a case-by-

case basis. Alfred H.H., 

910 N.E.2d at 84

. Thus, in Illinois the person

must present evidence sufficient to justify application of the collateral

consequences exception.

       We agree with the Alaska Supreme Court that the better approach

is to presume that a person adjudicated seriously mentally impaired and

involuntarily committed suffers adverse collateral consequences.     Such

an adjudication not only requires a finding that the person suffers a

mental illness, but also that the person poses a danger to himself or

others, is likely to inflict serious emotional injury upon another, or is

unable to satisfy his own bodily needs for survival. The stigma arising

from this adjudication is significant. In addition, the potential for the

adjudication to be used in future proceedings is likely present in each

case. Further, we recognize collateral consequences are mitigated if the
                                           12

person has previously been involuntarily committed under chapter 229.

For example, under federal law he or she will not lose the right to

possess firearms because the right was already lost following the first

commitment.       See 

18 U.S.C. § 922

(d) (2006).             Nonetheless, we believe

prior involuntary commitments are better used as evidence to rebut the

presumption of collateral consequences, rather than to deny the

existence of collateral consequences. See Joan K., 

273 P.3d at 597

.

       We further agree with the Alaska Supreme Court that the

presumption of collateral consequences may likely be rebutted by “some

number of prior involuntary commitment orders.”                      

Id. at 598

.      For

example, a series of recent, successive involuntary commitments that

were either not appealed or upheld on appeal might effectively remove

any stigma resulting from a later involuntary commitment proceeding.

In this case, however, the record reveals that B.B.’s prior involuntary

commitment occurred thirteen years ago. We do not think such a single

and remote prior involuntary commitment is sufficient to eliminate the

stigma resulting from the adjudication in this case. As a result, we now

consider the merits of this appeal. 5

       B. Sufficiency of the Evidence. B.B. alleges the determination
that he is seriously mentally impaired is not supported by substantial

evidence. Iowa Code section 229.1 defines “seriously mentally impaired”

in the following way:

              17. “Seriously mentally impaired” or “serious mental
       impairment” describes the condition of a person with mental
       illness and because of that illness lacks sufficient judgment
       to make responsible decisions with respect to the person’s


        5As a result of our holding, it is not necessary for us to consider the application

of the public interest exception to the mootness doctrine in this case.
                                          13
       hospitalization or treatment, and who because of that illness
       meets any of the following criteria:

             a. Is likely to physically injure the person’s self or
       others if allowed to remain at liberty without treatment.

             b. Is likely to inflict serious emotional injury on
       members of the person’s family or others who lack
       reasonable opportunity to avoid contact with the person with
       mental illness if the person with mental illness is allowed to
       remain at liberty without treatment.

             c. Is unable to satisfy the person’s needs for
       nourishment, clothing, essential medical care, or shelter so
       that it is likely that the person will suffer physical injury,
       physical debilitation, or death.

Iowa Code § 229.1

(17).         In In re Oseing, 

296 N.W.2d 797, 799

 (Iowa

1980), we interpreted a previous incarnation of this definition as

containing three elements. We stated that to find a person is seriously

mentally impaired, that person must first be found to be “afflicted with a

mental illness,” and consequently “to lack sufficient judgment to make

responsible decisions with respect to his or her hospitalization or

treatment.”      Oseing, 

296 N.W.2d at 799

 (internal quotation marks

omitted).    Third, the person had to “be likely, if allowed to remain at

liberty, to inflict physical injury on himself or others or to inflict

emotional injury on the designated class of persons.” 6 

Id.

       B.B. agrees sufficient evidence supports the finding that he has a

mental illness, but challenges the sufficiency of the evidence as to

whether he is unable to make responsible decisions about his own

treatment, whether he would have caused serious physical injury to

        6Subsequent to Oseing, the legislature amended the third element to provide

that it could be satisfied if the person is “unable to satisfy the person’s needs for
nourishment, clothing, essential medical care, or shelter so that it is likely that the
person will suffer physical injury, physical debilitation, or death.” See 1995 Iowa Acts
ch. 24, § 1; 1989 Iowa Acts ch. 275, § 1. However, because the district court did not
make this finding, we will not consider it here.
                                          14

himself or others, and whether he would have caused serious emotional

injury to his family or others. We disagree with B.B.’s contentions.

      In her report, Dr. Idahosa opined B.B. lacked sufficient judgment

to make responsible decisions with respect to his hospitalization and

treatment because of a mental illness. Dr. Idahosa also testified to the

same at the hearing.        Dr. Idahosa based her opinion on face-to-face

examinations of B.B. that occurred every day after B.B. was hospitalized

prior to the hearing. While Dr. Idahosa’s opinion was short on specifics,

we believe the district court reasonably relied on her opinion testimony.

      Dr. Idahosa testified that B.B. claimed the hospital staff was

attempting to take away his brain and other organs up until at least one

day prior to the hearing, that he was irritable and violent towards

hospital staff when he arrived at the hospital and thereafter, and that he

refused    to    swallow   his    medication   while   hospitalized,    prompting

Dr. Idahosa to change his prescription to a medication that would

dissolve under his tongue.            In addition, in finding the element was

satisfied, the district court observed that B.B. “can’t even make the

recognition that he has a mental illness, and that is where his problems

begin.” Thus, substantial evidence supports the district court’s finding

that B.B. lacked sufficient judgment to make responsible decisions about

his medical treatment.

      B.B. also argues substantial evidence does not support the finding

that he would be likely to inflict serious physical injury on himself or

others or that he would be likely to inflict serious emotional injury to

members of his family or others lacking a reasonable opportunity to

avoid him. In Oseing, we observed that the term “likely” means “probable

or reasonably to be expected.”          Oseing, 

296 N.W.2d at 801

.       We also

stated    that   it   “requires   a   predictive   judgment,   ‘based   on   prior
                                    15

manifestations but nevertheless ultimately grounded on future rather

than past danger.’ ” 

Id.

 (citation omitted). In In re Mohr, we expanded on

this definition by noting “[t]his element requires that the threat the

patient poses to himself or others be evidenced by a ‘recent overt act,

attempt, or threat.’ ” 

383 N.W.2d 539, 542

 (Iowa 1986) (quoting Stamus

v. Leonhardt, 

414 F. Supp. 439, 451

 (S.D. Iowa 1976)).

      Dr. Idahosa opined B.B was likely to cause physical injury to

himself or others. She based her opinion in part on the ground that B.B.

is “irritable, he is paranoid, he feels people are trying to do something to

him.” Dr. Idahosa further stated, “He’s always arguing with his wife, she

has a restraining order and he has nowhere to go.” That Dr. Idahosa

based her opinion on the fact that B.B. was paranoid is significant

because the district court could have found the diagnosis of “psychosis,

not otherwise specified” to be directly connected to the finding that B.B.

posed a likely threat to cause physical injury. See 

Iowa Code § 229.1

(17)

(requiring danger of physical harm to be caused by mental illness).

Further, Dr. Idahosa observed that when B.B. went to the emergency

room, “he displayed out of control behavior.” Dr. Idahosa continued by

saying that “[B.B.] was irritable [and] violent” and that B.B. “gets very

angry if you don’t do what he wants you to do and becomes threatening

towards us.”   The December 14 emergency hospitalization order notes

B.B. had been brought to the emergency room “in a very agitated and

confused state” and was “making wild threats to harm himself and

others and is currently requiring three police officers to keep him

subdued.”    At the time of B.B.’s initial hospitalization, B.B.’s wife was

afraid for him to come home and did not feel safe if he were to be

released.   She said the symptoms of paranoia were the worst she had

seen in twelve years. The Hoffman affidavit noted that B.B.’s “wife fears
                                      16

that he might harm her or their children if released.” B.B.’s wife’s fear of

B.B. is illustrated by the fact that she obtained a restraining order

against him.   In light of this evidence, we conclude the district court

committed no legal error in finding B.B. was likely to cause serious

physical injury to himself or others if he remained at liberty. See Mohr,

383 N.W.2d at 542

 (relying on the “threatening nature” of conduct).

      IV. Conclusion.

      For the reasons expressed above, we hold that the matter is

justiciable. On the merits, we conclude the district court’s finding that

B.B. was seriously mentally impaired is supported by substantial

evidence.

      AFFIRMED.

      All justices concur except Waterman and Mansfield, JJ., who

concur in part and dissent in part.
                                     17
                                                        #12–0158, In re BB
MANSFIELD, Justice (concurring in part and dissenting in part).

      I agree that if we reach the merits, the district court’s order should

be affirmed. However, I would dismiss the appeal as moot.

      The majority seemingly holds that an appeal from a civil

commitment order, where the appellant has been released, should only

be dismissed as moot if there have been “a series of recent, successive

involuntary commitments that were either not appealed or upheld on

appeal.” I think this standard opens the door to too many future appeals

of commitment orders where nothing tangible is at stake. I am not in

favor of using our judiciary’s limited resources in this fashion.

      This particular case highlights the potential concerns. Here B.B.,

a Nebraskan with a history of mental illness who admitted he was

“distraught,” crossed into Iowa on December 14, 2011, and tried to enter

the restricted area of an Iowa Air National Guard base. He was brought

to a hospital emergency room “in a very agitated and confused state.” He

was “making wild threats to harm himself and others and . . . requiring 3

police officers to keep him subdued.” Based on an emergency order, B.B.

was hospitalized. He refused to take his medication. He denied he had

any mental illness or needed any medication. He claimed the hospital

staff were going to take his brain or his organs from his body.

      In addition to getting medical treatment in a Sioux City hospital,

B.B. received a full hearing on December 20.         After the hearing, the

district court concluded that B.B. should remain hospitalized for the

reasons set forth in Iowa Code section 229.1(17)(a) and (b). Seven days

later, B.B.’s condition apparently stabilized.       He was released for

outpatient treatment and went home to Nebraska.
                                         18

       Now B.B. seeks to bring an appeal challenging the sufficiency of

the evidence to sustain his expired commitment order. The taxpayers of

Iowa will pay for all aspects of this appeal, including the expense of

B.B.’s attorney, just as they bore the expense of all lower court

proceedings. 7

       No one suggests that we are constitutionally required to hear this

case. This is purely our call. As the majority notes, there is a grab bag

of standards from other jurisdictions, under some of which this appeal

would be moot. See also In re Involuntary Commitment of Skelton, 

777 So. 2d 148, 149

 (Ala. Civ. App. 2000) (dismissing appeal from

commitment order as moot where the appellant had been released);

Dickinson v. State, 

270 S.W.3d 863

, 866–67 (Ark. 2008) (dismissing

appeal from commitment order where the appellant had been released

and no public exception applied); In re Doe, No. 23869, 

2003 WL 1264129

 at *1–2 (Haw. Mar. 17, 2003) (same); In re Interdiction of C.S.B.,

880 So. 2d 997, 999

 (La. Ct. App. 2004) (dismissing appeal as moot).

       Furthermore, under our own precedent, this appeal is moot. In In

re M.T., we indicated that an appeal from a civil commitment order

ordinarily becomes moot when the party has been released, stating, “We

think the present appeal is moot.             M.T. is no longer subject to the

inpatient treatment order that resulted from the challenged hearing.”

625 N.W.2d 702

, 705 (Iowa 2001).               True, what we said there was

arguably dictum, because we later went on to hear the case under a

separate exception to the ordinary rules of mootness. Id. But our court


       7I mean no criticism of B.B.’s court-appointed counsel, who has been zealously
and capably representing his client, as he should. My question is simply whether we
should be voluntarily expanding our own appellate jurisdiction as urged by the
majority.
                                          19

unanimously signed on to the foregoing general statement on mootness,

and it has been repeatedly followed by the court of appeals in dismissing

appeals from commitment orders on mootness grounds. 8

        If we are going to overrule what we said in In re M.T., then I would

propose a different standard from the majority’s. Thus, I would hold that

a commitment appeal should automatically go forward if the appellant

has not previously been adjudicated mentally ill (or the statutory

equivalent) in any jurisdiction. If, however, the State can demonstrate

that the appellant has previously been adjudicated mentally ill, e.g., in

papers filed with a motion to dismiss the appeal, then the presumption

would arise that the appeal is moot if the appellant has been released.

The burden then would shift to the appellant to show that he or she will

suffer some specific collateral consequence from the judgment that he or

she seeks to appeal (other than the stigma or potential future evidentiary

value    of    one   more    finding    that   the   appellant     is   mentally     ill).

Alternatively, the appellant may show that the appeal falls into the broad

public interest exception (and here I would hold that sufficiency of the

evidence appeals do not meet that exception). 9 If the appellant fails to do

either of these things, the appeal would be dismissed.



        8See In re J.R.L., No. 08–0298, 

2008 WL 4307997

 (Iowa Ct. App. Sept. 17, 2008);

In re J.P., No. 03–1419, 

2004 WL 793223

 (Iowa Ct. App. Apr. 14, 2004); In re O.T., No.
03–0365, 

2003 WL 22700659

 (Iowa Ct. App. Nov. 17, 2003); In re D.M.G., Sr., No. 02–
0143, 

2002 WL 31424828

 (Iowa Ct. App. Oct. 30, 2002); In re D.K., No. 00–1596, 

2001 WL 1502825

 (Iowa Ct. App. Nov. 28, 2001). Obviously, these kinds of cases will now be
added to the court of appeals’ caseload, as will the many appeals that were not
previously brought because attorneys assumed they were moot (not to mention the
appeals that we dismissed as moot on motion prior to any transfer).
        9See Rarey v. State, 

616 N.W.2d 531, 532

 (Iowa 2000) (finding the public interest
exception did not apply where the issues “relate[d] peculiarly to [the appellant’s]
particular situation”); In re Alfred H.H., 

910 N.E.2d 74, 81

 (Ill. 2009) (noting that
sufficiency of the evidence claims “are inherently case-specific reviews”).
                                          20

       I believe this approach appropriately balances the interests of the

appellant, the State, and the courts, and gives guidance for future cases.

Under this approach, B.B.’s appeal would be dismissed. He has a prior

involuntary commitment, even though it is from a number of years ago,

and he has not shown that he will be subject to any specific collateral

consequence because of his latest commitment order.

       I recognize the potential exists for collateral consequences from

any involuntary commitment order.              I also acknowledge there can be

stigma, although it bears emphasis that the proceedings are confidential.

See 

Iowa Code § 229.24

 (2011). 10 However, when a person already has a

prior commitment order on his or her record, I think it is not

unreasonable to insist that he or she demonstrate some concrete harm

arising from the expired order he or she is trying to appeal.                 For the

foregoing reasons, I respectfully dissent in part.

       Waterman, J., joins this concurrence in part and dissent in part.




       10The   United States Supreme Court has recognized that “involuntary
commitment to a mental hospital after a finding of probable dangerousness to self or
others . . . can have a very significant impact on the individual.” See Addington v.
Texas, 

441 U.S. 418

, 425–26, 

99 S. Ct. 1804, 1809

, 

60 L. Ed. 2d 323, 331

 (1979)
(emphasis added). After first quoting this passage accurately, my colleagues then
modify its meaning later in their opinion when they say that such a finding “has a ‘very
significant impact on the individual.’ ” (Emphasis added.)