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.
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 times to appeals from temporary civil-commitment 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 forty-five-day 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, 643-44, 846 S.W.2d 639, 640-41 (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 forty-five-day commitment order, where we further noted, “Persons committed under a forty-five-day 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 forty-five-day commitment order. I know of only one case in which this court has declined to apply the mootness exceptions to a temporary civil-commitment 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 well-settled exceptions to the instant appeal. With 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 seventy-two-hour commitment order and the forty-five-day commitment order. In response, I point to the cases cited above that have permitted appeals of forty-five-day commitment orders and note that the rationale applies even more fittingly to appeals of seven-day commitment orders. If an appellant cannot pursue an appeal of a forty-five-day 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 seven-day commitment order. Thus, the issue will always evade review. Moreover, the issue presented here — whether an attorney who believes an appeal from a civil-commitment 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 civil-commitment proceedings. The United States Supreme Court decided to require no-merit briefs in an attempt to “assure penniless defendants the same rights and 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 Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). In Linker-Flores, we were faced with the question of whether the Anders procedures should be applied to counsel for indigent parents in termination-of-parental-rights 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 Linker-Flores 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 no-merit 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 no-merit brief. Whether we choose to proceed on our own or require the parties to brief the issue of Anders 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, forty-five-day commitment somehow inoculates restrained persons from any harm imposed by the seven-day 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 seven-day commitment order is appealable by statute. Ark. Code Ann. § 20-47-217 (Repl. 2001). Yet, an appeal cannot possibly be resolved within seven days’ time. Thus, the majority’s opinion completely eliminates the statutorily guaranteed right to an appeal. Because the issues presented in an appeal from a seven-day 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 above-stated 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.
Brown, J., joins this dissent.