No. 85-126
I N T E SUPREME COURT OF THE STATE O MONTANA
H F
1985
I N THE MATTER O J . & .
F I
APPEAL FROM: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e ,
The H o n o r a b l e R o b e r t Holmstrom, J u d g e p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
T e r r y S e i f f e r t , B i l l i n g s , Montana
For Respondent:
H a r o l d H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : May 9, 1985
Decided: August 1 5 , 1985
Mr. Justice Fred J. Weber delivered the opinion of the Court.
The Yellowstone County Attorney filed a petition in the
District Court of the Thirteenth Judicial District alleging
that appellant (J.M.) is seriously mentally ill and
requesting that he be committed to a mental health facility.
After initial detention, examination by a professional person
and a hearing at which J.M. was present, the District Court
entered its findings and ordered that J.M. be committed to
the Montana State Hospital for treatment and evaluation not
to exceed 3 months unless extended as provided by law. J.M.
appeals. We affirm the District Court.
The issues raised by the appellant are:
1. Was there sufficient evidence to support the finding
of the District Court that J.M. was suffering from a mental
disorder?
2. Was there sufficient evidence to support the finding
of the District Court that J.M. is seriously mentally ill
within the meaning of S 53-21-102(14), MCA?
On February 1, 1985, at the request of J.M.'s cousin,
the Yellowstone County Attorney filed a petition in District
Court alleging that J.M. was seriously mentally ill and
requesting that he be committed to a mental health facility.
Initially, the District Court found probable cause to believe
J.M. was seriously mentally ill and ordered that he be de-
tained pending a hearing. After the initial appearance of
J.M. and his counsel on February 4, the court ordered that an
examination by a professional person be conducted at the
South Central Montana Regiona 1 Mental Health Center. A
hearing was then held on February 7, 1985, following which
the court entered its findings of fact and ordered that J.M.
be committed to the Montana State Hospital in Warm Springs.
Counsel for J.M. emphasizes the testimony on the part of
J.M. and others which he finds to be favorable on the issues.
Under t h e s e c i r c u m s t a n c e s , we w i l l q u o t e a t some l e n g t h from
the f i n d i n g s on the part of the District Court, and then
consider whether or not there is sufficient evidence to
affirm these findings.
The D i s t r i c t C o u r t ' s Statement o f F a c t s dated February
7 , 1985, i n c l u d e s t h e following:
" [J.M. ' s ] r e l a t i v e by m a r r i a g e , David
Grimmett, t e s t i f i e d t h a t [J.M.] came t o
t h e home G r i m m e t t and h i s w i f e own i n
L a u r e l , a t any h o u r o f t h e day o r n i g h t ,
c l a i m i n g t o b e t h e h e i r t o t h e home; t h a t
[J.M.] t h r e a t e n e d t o b e a t u p a c o u s i n t o
o b t a i n a gun h e b e l i e v e h e s h o u l d h a v e
inherited; that [J.M.] had s t a t e d h e
wanted a gun t o g o g e t money from a bank
i n L i v i n g s t o n ; t h a t [J.M. ] had t r i e d t o
goad M r . Grimmett i n t o f i g h t i n g w i t h him;
and t h a t [J.M.] wanted G r i m m e t t t o o b t a i n
a h o r s e f o r him t o r i d e t o C a l i f o r n i a .
An a c q u a i n t a n c e , S h a r o n Summers, t e s t i -
fied t o hearing [J.M.] several t i m e s
c l a i m t h a t b e f o r e h e was d o n e , h e would
g e t a gun and s h o o t t h e h e a d s o f f a l o t
of people. [J.M.] d e n i e d e v e r y o n e o f
t h e s e s t a t e m e n t s , and a d m i t t e d i n re-
sponse t o t h e c o u r t ' s q u e s t i o n s t h a t h i s
u n c l e d i e d a t some unknown t i m e a f t e r
1 9 6 6 , and [J.M.] b e l i e v e [ s i c ] h i s c o u s i n
may h a v e p o i s o n e d h i s u n c l e . "
I n a d d i t i o n , t h e Statement of F a c t s s t a t e d t h e following with
r e g a r d t o t h e e x a m i n a t i o n by t h e h e a l t h p r o f e s s i o n a l :
"At the commitment hearing, Scott
Schreiber, a C e r t i f i e d Mental Health
P r o f e s s i o n a l f o r t h e S t a t e o f Montana
t e s t i f i e d t h a t h e had e v a l u a t e d [J.M.] a t
t h e B i l l i n g s D e a c o n e s s H o s p i t a l Emergency
Room on J a n u a r y 2 5 , 1 9 8 5 , and had a t -
tempted to conduct an e v a l u a t i o n of
[J.M.] a t the jail, pursuant t o t h e
c o u r t ' s o r d e r , on F e b r u a r y 6 , 1985. Mr.
Schreiber testified that [J.M.] was
confused, agitated and intermittently
t h r e a t e n i n g i n h i s b e h a v i o r a t t h e emer-
g e n c y room; t h a t h e was a p p a r e n t l y d e l u -
s i o n a l i n h i s b e l i e f t h a t h i s u n c l e had
been p o i s o n e d by [ J . M . ' s ] c o u s i n ; t h a t h e
p a c e d t h e room and g l a r e d a t S c h r e i b e r ,
a t t e m p t i n g t o s t a r e him down; t h a t h e
r e f u s e d t o a n s w e r c e r t a i n q u e s t i o n s , and
g e n e r a l l y e x h i b i t e d p o o r judgment i n h i s
h o s t i l e and u n c o o p e r a t i v e b e h a v i o r toward
Schreiber. S c h r e i b e r ' s t e n t a t i v e diagno-
s i s was t h a t [J.M.] s u f f e r s from o r g a n i c
brain disorder, with subheadings of
o r g a n i c d e l u s i o n a l d i s o r d e r and o r g a n i c
personality syndrome. Schreiber
testified that his further contact with
[J.M.] on February 6, 1985, and [J.M.'s]
attitude and behavior during Schreiber's
attempt to conduct his evaluation, were
consistent with Schreiber's diagnosis.
Schreiber further testified that, because
of [J.M.'s] poor judgment and poor im-
pulse control, and because of his intense
and unpredictable feelings, together with
his threats toward others, Schreiber
believes [J.M.] to represent a threat of
imminent injury to others. For that
reason, Schreiber recommended long term
residentia1 treatment to confirm his
diagnosis and provide [J.M.] with
treatment.
"Scott Schreiber further testified that
no local facilities are equipped to
require [J.M.] to remain on premises and
comply with recommendations regarding
medication or treatment; the psychiatric
unit at Deaconess Hospital is a short-
term residential facility. Schreiber
indicated that closer long-term supervi-
sion than that available in Billings is
required to protect [J.M. ] and those
threatened by him. He recommended that
[J.M.] be committed to the Montana State
Hospital at Warm Springs for further
evaluation and treatment."
In addition, the District Court made the following
specific findings of fact and conclusions:
" [J.M.] is in need of long-term treatment
for his condition, in addition to any
medical help he may need. The least
restrictive environment at which [J.M.]
can receive the close supervision,
evaluation, and care he needs is the
Montana State Hospital at Warm Springs,
Montana.
"[J.M.] is beyond a reasonable doubt
seriously mentally ill as defined in
Section 53-21-102, MCA."
By its separate Order dated February 7, 1985, the Dis-
trict Court ordered that J.M. be committed and confined in
the Montana State Hospital at Warm Springs for a period of
treatment and evaluation not to exceed 3 months, unless
extended as provided by law.
I
Was t h e r e s u f f i c i e n t e v i d e n c e t o s u p p o r t t h e f i n d i n g o f
the District Court that J.M. was s u f f e r i n g from a mental
disorder?
Counsel f o r 3.M. a r g u e s t h a t t h e m e n t a l h e a l t h examina-
t i o n was n o t c o n d u c t e d by a p s y c h i a t r i s t o r a p s y c h o l o g i s t
and therefore suggests t h a t the examination is subject to
question. We n o t e t h a t S; 5 3 - 2 1 - 1 2 2 ( 2 ) , MCA, provides t h a t
the District Court shall appoint a professional person to
examine t h e a p p e l l a n t . "Professions 1 p e r s o n " i s defined i n
S; 5 3 - 2 1 - 1 0 2 ( 1 0 ) , MCA, a s a m e d i c a l d o c t o r o r a p e r s o n who h a s
been c e r t i f i e d by t h e Department o f I n s t i t u t i o n s , a s p r o v i d e d
i n S; 53-21-106, MCA.
The t e s t i m o n y o f M r . Schreiber e s t a b l i s h e d t h a t he i s a
c o u n s e l o r - t h e r a p i s t a t t h e Mental H e a l t h C e n t e r , t h a t h e i s a
certified mental health professional for the State of
Montana, and t h a t h e h a s been s o c e r t i f i e d f o r 3 y e a r s . No
o b j e c t i o n s were r a i s e d i n t h e course of the hearing a s t o
Mr. Schreiber's qualifications. As a result, there is
n o t h i n g i n t h e r e c o r d which e s t a b l i s h e s a need o r r e q u i r e m e n t
f o r e i t h e r a p s y c h i a t r i s t o r psychologist i n t h i s case.
Counsel f o r J . M . further attempts t o r a i s e doubts a s t o
t h e adequacy o f t h e testimony of M r . Schreiber a s a health
professional, relying on Matter of N.B. (Mont. 1980), 620
P.2d 1228, 37 S t . R e p . 2031. It is true that i n N.B. this
C o u r t found i n s u f f i c i e n t e v i d e n c e t o a c c e p t t h e t e s t i m o n y on
the p a r t of M r . Schreiber because o f an incomplete record.
rile concluded that h e was a p r o f e s s i o n a l person of unknown
e x p e r t i s e and t h a t h i s t e s t i m o n y was e s s e n t i a l l y i n s u f f i c i e n t
t o e s t a b l i s h w i t h r e a s o n a b l e m e d i c a l c e r t a i n t y t h a t N.B. was
seriously mentally ill. N.B., 620 P.2d at 1231-32, 37
St.Rep. a t 2034-35.
We point out that S 53-21-102(10), MCA (1979), which was
in effect at the time of the hearing in N.B., - has been
amended. The amendment allows either a medical doctor or a
person who has been certified by the Department of
Institutions to qualify as the professional person to make
the mental examination. The record in this case establishes
that Mr. Schreiber was certified in accordance with
§§ 53-21-102 (10)(b) & 53-21-106, MCA. We therefore conclude
that there is nothing in the record to raise a question as to
the qualifications of Mr. Schreiber and his capacity to
formulate opinions and recommendations.
Counsel for J.M. also implies that because Mr. Schreiber
observed J.M. for a limited period of time on two different
occasions, his conclusions are suspect. We have reviewed the
transcript which sets forth the testimony on the part of all
of the witnesses, including both J.M. and Mr. Schreiber.
The record establishes that J.M. was uncooperative in
responding to questions on the part of Mr. Schreiber. As a
result, an extended examination on either of the two
occasions would have been of little value because of the
unwillingness of J.M. to respond to any form of extended
questioning. The transcript shows that in a similar manner,
J.M. refused to respond to the questioning of the District
Court at the time of his hearing, in that he refused to
advise the court whether or not he was married or had
children.
In addition, J.M. attempts to argue that the profession-
al person should not have relied upon any hearsay reports.
We affirm the previous determinations by this Court that a
professional person may express his opinion as to the serious
mental illness of a party even though the evidence of such
things as imminent threat of injury are made known by hearsay
evidence and not based upon the professional person's
p e r s o n a 1 knowledge. See Matter o f G.S. (Mont. 1985), 698
P.2d 406, 4 2 St.Rep. 451; M a t t e r o f C.M. ( 1 9 8 1 ) , 195 Mont.
1 7 1 , 635 P.2d 273. T h e r e i s no r e q u i r e m e n t t h a t t h e f a c t s
upon which an expert relies in forming an opinion be in
themselves admissible i n evidence. Rule 703, Mont.R.Evid.
Mr. Schreiber specifically testified on r e - d i r e c t with
regard to his conclusions that J.M. suffered a mental
disorder:
"Q. Is t h e r e a n y d o u b t i n y o u r mind t h a t
[J.M.] s u f f e r s from a m e n t a l d i s o r d e r ?
"A. No, t h e r e ' s n o t . "
The health professional stated that his d i a g n o s i s was an
o p i n i o n b a s e d on a r e a s o n a b l e m e d i c a l c e r t a i n t y .
The s t a t u t o r y p r o v i s i o n s which a r e applicable are set
f o r t h i n 5 53-21-126(4), MCA, a s f o l l o w s :
"The p r o f e s s i o n a l p e r s o n may t e s t i f y a s
t o t h e u l t i m a t e i s s u e o f whether t h e
respondent i s s e r i o u s l y mentally ill.
This testimony i s i n s u f f i c i e n t unless
accompanied by e v i d e n c e from t h e p r o f e s -
s i o n a l person o r o t h e r s t h a t :
" ( a ) t h e r e s p o n d e n t i s s u f f e r i n g from a
m e n t a l d i s o r d e r ; and
" ( b ) t h e mental d i s o r d e r h a s r e s u l t e d i n
self-inflicted injury o r injury t o others
o r t h e imminent t h r e a t t h e r e o f o r h a s
deprived t h e person a f f l i c t e d of t h e
a b i l i t y t o protect h i s l i f e o r health."
The evidence in the record shows that Mr. Schreiber
t e s t i f i e d not only t h a t J.M. was s e r i o u s l y m e n t a l l y i l l , b u t
h e s e t f o r t h t h e d a t a f o r making t h e d i a g n o s i s , t h e c h a r a c -
t e r i s t i c s o f t h e p a r t i c u l a r m e n t a l d i s o r d e r which J . M . demon-
s t r a t e d and t h e e f f e c t o f t h a t d i s o r d e r upon. J . M . W e have
c a r e f u l l y reviewed t h e t r a n s c r i p t and c o n c l u d e t h a t t h e r e i s
s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e c o n c l u s i o n on t h e p a r t o f
t h e D i s t r i c t Court t h a t J.M. s u f f e r e d from a m e n t a l d i s o r d e r .
Was t h e r e s u f f i c i e n t e v i d e n c e t o s u p p o r t t h e f i n d i n g o f
t h e D i s t r i c t Court t h a t J.M. is seriously mentally ill within
t h e meaning o f S 5 3 - 2 1 - 1 0 2 ( 1 4 ) , MCA?
The d e f i n i t i o n o f " s e r i o u s l y m e n t a l l y i l l " c o n t a i n e d i n
B 5 3 - 2 1 - 1 0 2 ( 1 4 ) , MCA, i s a s f o l l o w s :
" ' S e r i o u s l y m e n t a l l y i l l ' means s u f f e r i n g
from a m e n t a l d i s o r d e r which h a s r e s u l t e d
i n self-inflicted injury o r injury t o
o t h e r s o r t h e imminent t h r e a t t h e r e o f o r
which h a s d e p r i v e d t h e p e r s o n a f f l i c t e d
of the a b i l i t y t o protect h i s l i f e o r
health. F o r t h i s p u r p o s e , i n j u r y means
physical injury. . ."
The standard of proof in any hearing on the question of
s e r i o u s m e n t a l i l l n e s s i s s t a t e d i n S 53-21-126 ( 2 ) , MCA, as
follows:
"The s t a n d a r d o f p r o o f i n any h e a r i n g
held pursuant t o t h i s s e c t i o n i s proof
beyond a r e a s o n a b l e d o u b t w i t h r e s p e c t t o
any p h y s i c a l f a c t s o r e v i d e n c e and c l e a r
and c o n v i n c i n g e v i d e n c e a s t o a l l o t h e r
matters, except t h a t mental d i s o r d e r s
s h a l l b e e v i d e n c e d t o a r e a s o n a b l e medi-
cal certainty. Imminent t h r e a t o f s e l f -
inflicted injury o r injury t o others
s h a l l b e e v i d e n c e d by o v e r t a c t s , s u f f i -
c i e n t l y r e c e n t i n time a s t o be m a t e r i a l
and relevant a s t o t h e respondent's
present condition."
The p r e v i o u s l y - q u o t e d Statement o f F a c t s of t h e D i s t r i c t
C o u r t p o i n t e d o u t t h a t J.M. had threatened t o b e a t up h i s
c o u s i n i n o r d e r t o o b t a i n a gun h e b e l i e v e d h e s h o u l d h a v e
inherited; t h a t J.M. had s t a t e d h e wanted a gun t o go g e t
money from a b a n k ; t h a t J . M . t r i e d t o goad M r . Grimrnett i n t o
f i g h t i n g w i t h him; and J . M . stated several t i m e s t h a t before
h e was d o n e , h e would g e t a gun and s h o o t t h e h e a d s o f f a l o t
of people. I n a d d i t i o n , t h e Statement of Facts r e f e r s t o t h e
f a c t u a l c o n c l u s i o n s on the p a r t of Mr. Schreiber t h a t J.M.
generally exhibited poor judgment in his hostile and
uncooperative behavior because of J.M.'s intense and
unpredictable feelings. Mr. Schreiber had concluded that
J.M.'s threats towards others represented a threat of
imminent i n j u r y t o o t h e r s .
W e p o i n t e d o u t i n t h e M a t t e r o f C.M. ( 1 9 8 1 ) , 195 Mont.
1 7 1 , 635 P.2d 273, t h a t it i s s u f f i c i e n t t o show t h e r e i s a
p r e s e n t i n d i c a t i o n o f p r o b a b l e i n j u r y which may o c c u r i n t h e
immediate f u t u r e . W e note t h a t t h e s t a t u t e i t s e l f provides
t h a t imminent t h r e a t o f i n j u r y t o o t h e r s s h a l l b e e v i d e n c e d
by overt acts sufficiently recent to be material and
relevant. Certainly, the above-mentioned evidence is
sufficient to fa11 within that statutory definition, even
though t h e r e i s a n absence o f any proved a t t e m p t t o c a r r y o u t
the threats.
Our careful review of the record indicates there is
substantial evidence to support the findings of fact and
conclusions of t h e D i s t r i c t Court. We conclude t h a t t h e
evidence was sufficient to support the holding of the
District Court t h a t J.M. was s e r i o u s l y m e n t a l l y i l l w i t h i n
the d e f i n i t i o n o f 5 53-21-102(14), MCA.
The findings and order of the District Court are
affirmed .
W e concur:
Justices
Mr. Justice John C. Sheehy, specially concurring:
I concur in the result here only because no objection
was made in this case to Schreiber's qualificati.on, and
because no effort was made before the District Court to
obtain for J.M. another person "qualified to perform the
requested. examination. " Section 53-21-118 (2), MCA.
I do not accept that one not a psychiatrist is qualified
to testify that J.M. has a mental disorder to a "reasonable
medical certainty." The reasonable medical certainty
standard is required by section 53-21-126(2), MCA. Moreover,
under Addington v. Texas (1979), 441 U.S. 418, 99 S.Ct. 1804,
60 L.Ed.2d 323, the court must find by "clear and. convincing
evidence" that commitment is necessary, otherwise the
commitment offends due process standards. When a person not
a psychiatrist or equally trained physician testifies to a
"reasonable medical certainty" that J.M. has a mental
disorder, that untrained person is testifying beyond his
competence. Such testimony does not rise to the standard of
clear and convincing evidence. J.M. was probably denied due
process in this case.
The state bureaucrats have engineered the legislature
into a sleight-of-hand on the competence of those capable of
testifying to a reasonable medical certainty that a mental
disorder exists. Thus the legislature has defined a
"professional person" as one who is a medical doctor, or one
certified by the Department of Institutions with no
prescribed standards for such certification. Section
53-21-102(10), MCA. Then the legislature defines "reasonable
medical certainty" as certainty iudged by the standards of a
professional person. Thus slickly does the law permit a
non-doctor to give his judgment of a medical question. I
doubt the law provides due process on the most important
issue in commitment proceedings: Does the respondent suffer
from a mental disorder?