dissents.
¶46 I respectfully dissent from the Court’s decision.
¶47 I join Justice Leaphart’s dissent from the Court’s decision on Issue 1, standard of proof.
¶48 Additionally, I dissent from the balance of the Court’s Opinion. I agree with the various statutory and constitutional arguments made by G.M. in his briefs on appeal. I am not going to go further than that, however, because writing a lengthy dissent and analysis here on the constitutional questions raised would accomplish little given G.M.’s stipulation for recommitment. Presumably, these issues will be raised again in a future proceeding.
¶49 And, with respect to the stipulation, one can hardly fault G.M. for conceding his recommitment. He has already, after all, been slapped in the rear end so many times by the revolving door of Montana’s recommitment process and the bureaucracy attendant thereto, see In re G.M., 2008 MT 200, ¶ 3, 344 Mont. 87, 186 P.3d 229 (G.M. I), that he can be excused for figuring, “what’s the use?” in the instant proceeding. I disagree with the Court’s conclusion that G.M.’s recommitment was not a foregone conclusion. Opinion, ¶ 25. It was. Infra, ¶ 50. Indeed, I expect G.M. will again be up for recommitment by the time this Opinion is handed down.
¶50 Moreover, it is particularly troubling to me that the Court has upheld the trial court’s denial of G.M.’s attempt to submit evidence concerning the general conditions and practices at MDC. I disagree that such general conditions and practices are effectively irrelevant. Indeed, from the numerous recommitment appeals in which I have participated, I am convinced that the general conditions and practices of MDC, along with the bureaucratic process of recommitment proceedings, see G.M. I, ¶¶ 33, 36, 40, 41, 45-47, and In re T.P., 2008 MT 266, ¶¶ 6-8, 15-17, 345 Mont. 152, 190 P.3d 313, and the trial courts’ general practice of treating these proceedings as a foregone conclusion, see G.M. I, ¶ 50, and T.P., ¶¶ 9,13,18, are, fundamentally and inherently, a major part of the problem.
*333¶51 Unfortunately, this approach seems to mirror the State’s prevailing view of people with developmental disabilities. In its brief on appeal, arguing that mentally ill persons and developmentally disabled individuals are not similarly situated, the State adopts secondary authority for the proposition that
the cardinal difference is that mental retardation is not an illness. Mentally ill people encounter disturbances in their thought processes and emotions; mentally retarded people have limited abilities to learn. Many forms of mental illness are temporary, cyclical, or episodic. Mental retardation, by contrast, involves a mental impairment that is permanent. Thus, legal rules which focus upon the prospect of “curing” mentally ill people may not address the condition of retarded people in an appropriate or useful fashion. [Internal citations omitted.]
I refuse to embrace this crass and insensitive view that developmentally disabled people are essentially “broken and cannot be fixed.”
¶52 Every day we encounter developmentally disabled people who go to school and colleges, who learn, who hold jobs, who earn wages, who live alone or with some assistance, who enjoy competitive sports, who have intimate relationships and who are productive members of society. See e.g. Saucier ex rel. Mallory v. McDonald’s Rest., 2008 MT 63, 342 Mont. 29, 179 P.3d 481 (a decision which, tragically, also demonstrates the darker side of how developmentally disabled people are exploited). Special Olympics is grounded in the idea that developmentally disabled people can enjoy competition and sports in the same fashion as those who are not so disabled. Perhaps mental retardation cannot be “cured” with our present state-of-the-art medicine, but there is no doubt that with proper, compassionate treatment and services, this condition can, at least, be ameliorated to the extent that developmentally disabled people-even those who exhibit dangerous behaviors-can enjoy a better quality of life.
¶53 Moreover, in endorsing the argument that developmentally disabled people are “incurable,” the State might remember that it was not too many decades ago that mental illness was also viewed as a “permanent” condition. Mentally ill people were “treated” with involuntary frontal lobotomies and massive shock therapies, and were warehoused in insane asylums, often under deplorable conditions. Fortunately for those suffering from mental illness, medicine can now effectively treat most forms of this disease. We can trust that medicine will one day, likewise, find effective therapies for mental retardation and developmental illnesses as well.
*334¶54 In the meantime, however, the system must respect the fundamental rights of dignity, privacy, liberty, health, safety, happiness, equal protection and due process that all developmentally disabled people, as Montana citizens, enjoy. Developmentally disabled people must not be condemned by their government to a paternalistic system that starts from the premise that they are broken, “unfixable” and “incurable.”
¶55 The Court’s Opinion, however, does lead me to conclude that individual recommitment proceedings and appeals therefrom are not the appropriate forums in which developmentally disabled people might, in the future, challenge the general practices and conditions of MDC and vindicate their fundamental constitutional rights. Rather, it appears that these citizens’ remaining remedies now will be a class action or action for declaratory judgment challenging not only the general practices and conditions of MDC, but, as well, this State’s systemic failure to uphold the fundamental constitutional rights of developmentally disabled people and the Legislature’s failure to enact a statutory scheme that requires appropriate treatment and funded services and community programs. See T.P., ¶¶ 21-23 (Nelson, J., concurring), ¶¶ 25-31 (Gray, C.J., concurring). I look forward to that case.
¶56 Respectfully, I dissent.