Nos. 87-391 and 87-537
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN THE MATTER OF THE MENTAL HEALTH
OF S. J.,
Respondent and Appellant.
IN THE MATTER OF T. I?.,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Smith, Jr., Warm Springs, Montana
Mary Gallagher, Warm Springs, Montana
For Respondent:
Honorable Mike Greely, Attorney General, Helena, Montana
Robert F. Smith, Assistant Attorney General
Ted 0 Lympus, County Attorney, Kalispell, Montana
.
Submitted on Briefs: March 3, 1988
Decided: April 11, 1988
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Filed:
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Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
S. J. and T. F. appeal separate orders of the Eleventh
Judicial District Court, Flathead County, involuntarily
committing appellants to Warms Springs State Hospital.
On February 23, 1988, we granted the State's motion to
consolidate the appeals of S. J. and T. F. Neither party
disputes the facts surrounding this appeal.
On August 8, 1987, appellant S. J. was detained pursu-
ant to a mental health hold. Section 53-21-129, MCA. On
August 8 and again on August 10, 1987, a psychologist, Dr.
Mary K. Kunde, examined S. J. and determined that S. J. was
seriously mentally ill but not a danger to herself or others.
On August 12, 1987, Dr. Kunde again evaluated S. J. and found
S. J. to be seriously mentally ill and "unable to protect her
life or health in the community." Dr. Kunde recommended
involuntary commitment. Subsequently, the State filed a
petition for involuntary commitment.
On August 13, 1987, S. J.'s court-appointed attorney,
Robert B. Allison, and S. J.'s friend, Gary G. Doran, waived
S. J.'s right to a formal court hearing. Section 53-21-119,
MCA. The District Court, after considering Dr. Kunde's
evaluation and the above-mentioned written waiver, found
S. J. to be seriously mentally ill and ordered her involun-
tarily committed to Warm Springs State Hospital.
On October 26, 1987, appellant T. F. was also detained
pursuant to a mental health hold. Section 53-21-129, MCA.
On October 27, 1987, Dr. Kunde evaluated appellant and deter-
mined that T. F. was not seriously mentally ill and did not
appear to be an imminent threat of danger to herself or
others.
On October 28, 1987, T. F. was again detained pursuant
to a mental health hold. Dr. Kunde evaluated appellant and
determined that T. F. was seriously mentally ill and appeared
to be an imminent threat of danger to herself. Dr. Kunde
recommended involuntary commitment. Subsequently, the State
filed a petition for involuntary commitment.
On October 29, 1987, the District Court appointed
Robert B. Allison attorney for appellant and Patrick D.
Sherlock friend of appellant. Sections 53-21-116 and -122,
MCA. Subsequently, Allison and Sherlock waived T. F.'s right
to a formal hearing. Section 53-21-119, MCA. On October 30,
1987, the District Court, after considering Dr. ~unde's
evaluations and the written waiver, found T. F. seriously
mentally ill and involuntarily committed T. F. to the Warm
Springs State Hospital.
On appeal, T. F. and S. J. allege the District Court
committed procedural errors which require the reversal of
their respective involuntary commitment orders. We agree.
Additionally, appellants raise two constitutional
issues. Because we are reversing on statutory grounds, we
decline to address appellants' constitutional claims. Taylor
v. Taylor (1975), 167 Mont. 164, 168, 537 ~ . 2 d483, 485.
Previously, we held that Montana's civil commitment
laws are to be strictly followed. In the Matter of T.J.F.
(Mont. 1987), 747 P.2d 1356, 1357, 44 St.Rep. 2145, 2146; In
the Matter of the Mental Health of R. J.W. (Mont. 1987) , 736
P.2d 110, 113, 44 St.Rep. 770, 774. The statutes at issue,
53-21-119 and § 53-21-127, MCA, provide in pertinent part:
53-21-119. Waiver of rights. (1) A
person may waive hisrights, or if the
person is not capable of making an
intentional and knowina decision. these
2
rights may be waived by his counsel and
friend of respondent acting together if
a recordis - - of the reasons - -
- - made - for t E
waiver. The r i ~ h t counsel mav not be
to - - ~ - -
waived. The riGht to treatment Grovided
for in this part may not be -waived.
(2) - right - - respondent - -
The of the to be
hysically present at a hearing may also
- waived by his atGrfiey and the friend
ge
of respondent with the concurrence of a
professional person and the judge upon -
a
finding supported facts that:
(a) the presence of the respondent at
the hearing would be likely to seriously
adversely affect his mental condition;
and
(b) an alternative location for the
hearing in surroundings familiar to the
respondent would not prevent such ad-
verse effects on his mental condition.
[Emphasis added.]
Post-trial disposition.
[2(c)1 ... The court shall consider
and shall describe in its order what
alternatives for treatment of the re-
spondent are available, what alterna-
tives were investigated, and why the
investiqated alternatives were not
deemed suitable. The court shall enter
- - record a detailed statement of
into the
the facts 1 ihich it found - -
uDon
-
the re-
spondent - - seriousTY mentally ill.
to be
[Emphasis added.]
Appellants allege and the State of Montana concedes the
following procedural errors : (1) The District Court failed
to make a record of appellants' waivers of a formal hearing,
§ 53-21-119, MCA, and (2) the District Court failed to make a
record of its finding of serious mental illness.
Appellants also allege the District Court erred when it
failed to make a record: (1) that appellants were served with
notice of the pending civil commitment proceedings, § § 53-21-
114, -115, and -121, MCA; (2) that appellants appeared at an
initial appearance and were advised of their rights,
§ 53-21-122, MCA; (3) that Gary G. Doran was appointed friend
of respondent, S. J., § 53-21-122, MCA; (4) that Dr. Mary
Kunde was a certified "professional person", 5 53-21-105,
MCA; and (5) that Dr. Kunde examined appellants and submitted
a written report, § 53-21-123, MCA.
The State contends that establishment of a contempora-
neous record is not required by $5 53-21-105, -106, -114,
-121, -122 and -123, MCA. Therefore, an evidentiary hearing
is necessary to establish violations, if any, of these stat-
utes. We agree with the State's contention that a contempo-
raneous record is not required by these statutes. However,
the District Court is required to note in its order of invol-
untary commitment that appellants have received the benefit
of all applicable statutory and constitutional rights. In
the case at bar, the record is bare of whether appellants
received the benefits of these rights.
Therefore, we reverse the order of the District Court
and order the District Court to make a contemporaneous record
as required by 5 5 53-21-119 (1) and (2) and 53-21-127 (2)(c),
MCA. Additionally, we remand this cause and order the Dis-
trict Court to determine the validity of appellants' contest-
- allegations of procedural errors and so indicate in its
ed
findings and order.
Reversed and remanded.
We concur: