In the Matter of Simons

                                No. 84-488
               IN THE SUPRE1M.E COURT OF THE STATE OF MONTANA
                                    1985



IN THE MATTER OF ERNEST (BILL)
SIMONS, Respondent.




APPEAL FROM:     District Court of the Third Judicial District,
                 In and for the County of Powell,
                 The Honorable Robert Boyd, Judge presiding.


COUNSEL OF RECORD:

       For Appellant:
                 Mark Sokkappa, Montana Legal Services, Warm Springs,
                 Montana

       For Respondent:

                 Ted L. Mizner, County Attorney, Deer Lodge, Montana



                                Submitted on Briefs:    Feb. 22, 1985
                                             Decided:   April 16, 1985



Filed: I        :Ytifa




                                Clerk
Mr. Justice Frank R. Morrison, Jr. delivered the Opinion of
the Court.
       Ernest      (Bill) Simons appeals both his commitment to
Montana State Hospital for a 72-hour evaluation period and
his commitment to the same hospital for a period of 90 days.
We reverse both commitment orders.
       We   have    jurisdiction over          this    matter      pursuant   to
§   53-21-131, MCA, which states in pertinent part:
       "Appellate review of any order of short-term
       evaluation and treatment or long-term commitment
       may be had by appeal to the supreme court of
       Montana in the manner as other civil cases, except
       that the appeal may be taken at any time                       ...
       within 90 days after discharge            . . . ."
This    appeal was      filed         seven days    following Mr.       Simons'
discharge.
       Respondent     asserts         that   appellant    has   not    properly
brought the record before us.                Since there is no transcript
or agreed upon statement of facts, we confine our review to
the record before us             -    the District Court files for both
actions.    Whether or not Simons signed a voluntary commitment
application on July 27, 1984, is irrelevant to the issue
before this Court, and will not be further treated.
       Charles Sewell was appointed as Bill Simons' guardian
and conservator on March 15, 1984.                 On July 24, 1984, Sewell
filed a petition in the District Court of the Third Judicial
District,     County    of       Powell,     requesting     that    Simons    be
committed to Montana State Hospital for a 72-hour evaluation
period, pursuant to S 72-5-322(1), MCA.                   Sewell's petition
was    accompanied by        a       letter from Dr.     Stanley N.      Smith,
stating that Simons was in need of immediate incarceration
due to his suicidal tendencies.               The District Court issued a
commitment order that same day.
       We reverse that order.            Mr. Simons was not provided with
notice of his impending commitment,                  attorney, or a hearing
prior    to      being   committed.            Section      72-5-322 ( 2 ) ,        MCA,
specifically       states      that     a    "ward     is    entitled          to    an
appointment of counsel and a hearing along with all other
rights     guaranteed       seriously       mentally       ill   persons        under
53-21-114, 53-21-115, 53-21-119, and 53-21-120."                      These other
rights include, among other important constitutional rights,
the right to notice.          Failure to grant Simons these rights is
a violation of both his statutory and constitutional rights
of due process.          Heryford v. Parker (10th Cir. 1968), 396

F.2d 393, 396.

       On July 26, 1984, at the request of Charles Sewell, the
County Attorney for Powell County filed a petition requesting
that Simons be committed to Montana State Hospital for a
period of 90 days, pursuant to 5 53-21-121, MCA.                        That same
day, Charles Sewell, as guardian and conservator for Simons,
filed a consent to commitment in which he waived Simons'
rights     to    notice,      an    attorney    and    a    hearing     prior        to
commitment.       An order involuntarily committing Bill Simons to
Montana State Hospital for 90 days was issued July 26, 1984.
       Again, Simons' statutory and constitutional rights of
due process were violated.              Section 53-21-115, MCA, gives a

person against whom a petition for involuntary commitment has
been filed all rights guaranteed by the constitutions of the
United States and of the state of Montana, including the
right of notice, the right to a hearing and the right to
counsel.        Sewell's attempt to waive these rights for Simons
was ineffective.           Section 53-21-119(1), MCA, provides that
only    the     person   to    be    committed, or         if that person            is
incapable of making an "intentional and knowing decision,"
his attorney and guardian acting in concert, may waive the
person's rights.         Simons had no attorney as Sewell tried to
waive his right to one.    However, "the right to counsel may
not be waived."   Section 53-21-119(1), MCA.
     Both orders committing Simons to Montana State Hospital
were obtained in violation of Simons' constitutional rights

of due process.   Both orders are reversed.




We concur: