No. 93-652
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MENTAL HEALTH
OF E. M.,
~espondentand Appellant*
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0 . Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert Allison, Kalispell, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Pamela P. ~ollins, Assistant Attorney General,
Helena, Montana
Thomas J. Esch, County Attorney; Valerie Wilson,
Deputy County Attorney, Kalispell, Montana
Submitted on Briefs: April 28, 1994
Decided: May 31, 1994
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
E.M. appeals from an order of the District Court for the
Eleventh ~udicial~istrict,Flathead County, committing her to a
mental health facility for a period of up to ninety days. We
affirm.
The issue is whether a verbal statement of a threatening
nature may constitute an overt act within the meaning of 5 53-21-
126(2), MCA.
On September 30, 1993, the Flathead County Attorney's office
filed a petition for involuntary commitment of E.M. Attached to
the petition was a report prepared and signed by two mental health
professionals employed by the Northwest Montana Regional Community
Mental Health Center.
According to the report, E.M. was a fifty-seven-year-old widow
with no known relatives. Mental health professionals evaluated her
after a friend of hers reported that E.M. had stated that she
planned to buy a gun and then shoot a neighbor and herself. When
the mental health professionals spoke with E.M. in her home, she
again stated her plan to shoot her neighbor and herself. The
report further stated that E.M. appeared to be suffering from a
delusional disorder and to be capable of carrying out her plan.
Although E.M. had no reported previous mental illness, the mental
health professionals wrote that, when interviewed, she had a
Ifparanoid delusion evidenced by ideas that neighbor is entering
[her] apt. + disturbing objects + T.V. signalsttand that E.M. Is
insight and judgment were "grossly impaired.If
The District Court held a hearing on the petition on October
5, 1993. E.M. was present and was represented by counsel and by a
court-appointed friend of respondent. A mental health professional
who signed the report was the sole witness.
Although E.M. does not challenge the finding that she suffers
from a mental disorder, we set forth some of the evidence on that
point to place the issue on appeal in context. The mental health
professional diagnosed E.M. as suffering from paranoia, a delusion-
al disorder, and possible underlying depression. She testified
that E.M. told her the neighbor had been in her apartment and had
cut little holes in her long johns. When the mental health
professional suggested another reasonable explanation might be that
the long johns were coming apart at the seams after laundering or
that there was some defect in the garment, Iv[E.M.] got quite
agitated with us. There was no other explanation . . . The
mental health professional also testified that E.M. stated her
neighbor had been entering her apartment and smearing feces on her
toilet and interfering with her television and radio reception with
electronic devices.
The court denied a motion by E.M. Is attorney to dismiss the
petition. It found that E.M. was seriously mentally ill and in
need of treatment. It ordered that she be committed to Glacier
View Hospital at her own expense for a period not to exceed ninety
days. The court further provided for a conditional release to
Lamplighter House upon E.M.Is compliance with the medical and
treatment program and no further acts or threats of violence.
May a verbal statement of a threatening nature constitute an
overt act within the meaning of 1 53-21-126(2), MCA?
Montana's procedures concerning petitions for involuntary
detention of a person at a mental health facility are set forth at
55 53-21-121 through -127, MCA. Section 53-21-126 (2), MCA,
provides :
The standard of proof in any hearing held pursuant to
this section is proof beyond a reasonable doubt with
respect to any physical facts or evidence and clear and
convincing evidence as to all other matters, except that
mental disorders shall be evidenced to a reasonable
medical certainty. Imminent threat of self-inflicted
injury or injury to others shall be evidenced by overt
acts, sufficiently recent in time as to be material and
relevant as to the respondent's present condition.
E.M. questions whether a verbal statement of a threatening nature
is sufficient to constitute an "overt actn under the statute.
E.M.'s question has been addressed in cases previously decided
by this Court. "A threat to kill is a verbal act that falls within
the definition overt act' as set forth the statute. It
re Goedert (1979), 180 Mont. 484, 487, 591 P.2d 222, 224. The
Court later elaborated:
The threat to kill another is a verbal overt act. It
manifests the commission of a dangerous act upon oneself
or another. When there is proof beyond a reasonable
doubt that there is a present indication of probable
physical injury likely to occur at any moment or in the
immediate future, coupled with the finding within a
reasonable medical certainty that the individual is
suffering from a mental disorder, then involuntary civil
commitment of that person is required.
In re F.B. (1980), 189 Mont. 229, 233, 615 P.2d 867, 869-70. We
have further explained our rationale as follows:
Our citizens are entitled to protection from harm at the
hands of those unfortunate persons who are victims of a
mental disorder. Most certainly the legislature never
intended that blood of innocent people must first be shed
before the statutory definition of "overt actww has been
satisfied.
In re J.B. (1985), 217 Mont. 504, 510, 705 P.2d 598, 602.
E.M. argues that her case is not comparable to the above-cited
cases because, in those cases, the court relied upon other behavior
in addition to a single verbal threat. She asserts that there has
been no showing of violent behavior by her in the past or "of even
the slightest scintilla physical act sort directed
against another in furtherance of this threat or, for that matter,
any prior incidents."
The record demonstrates that E.M. made repeated threats to end
her neighbor's life and her own life and that she may have obtained
a gun. The mental health professional testified as follows about
an interview with E.M. after the petition was filed:
And then on the 30th I was present at that interview, and
she clearly stated that she had made up her mind to get
the gun and we could not talk her out of it. When I
asked her if she had a gun already, she smiled and said,
"1 won't tell you that. She told me that she is a
determined person. And when we offered other possibili-
ties of settling these disputes with her neighbor,
including having meetings with the two of them, bringing
some of the complaints out to open discussion, she stated
that, "1 will do it my way." We again asked her "her
waytww she said, "I will shoot him, you better believe
and
it. 'I
On cross-examination, the mental health professional testified that
E.M. refused to answer a question as to whether she had already
taken further steps to obtain a gun. The mental health profession-
al also testified that she believed E.M.'s threats constituted a
very clear danger to the neighbor and to E.M. herself.
We conclude that the District Court did not err in ruling that
the State provided clear and convincing evidence of overt acts
constituting an imminent threat of injury to herself and another on
the part of E.M. We hold that the court did not err in ordering
E.M. involuntarily committed to a mental health facility.
Af finned.
We concur:
w
Justices
Justice William E. Hunt, Sr., dissenting.
I dissent. I recognize the difficulty these cases present and
the dilemma often faced by law enforcement officers, prosecutors,
and district judges, but the statute does provide that to prove
imminent threat of injury requires some sort of overt act, recent
enough in time to be relevant to the respondent's condition.
Section 53-21-126 (2), MCA. I agree with Justice Morrison's dissent
in MatterofLP., 217 Mont. 504, 511, 705 P.2d 598, 603 (Morrison, J.,
dissenting), where he said that vtcourtsshould be vigilant in
protecting the rights of those sought to be committed. The
discharge of judicial responsibility includes rigorous application
of the statutory mandate." As in that case, the State here has
failed to prove that E.M. took any actions to demonstrate a present
danger to either herself or to others. She is a 57-year-old widow
who has shown no inclination toward violence, and has only made
verbal threats. If we allow verbal threats alone to be sufficient
to lock somebody up for 90 days, whether or not at their own
expense, we have gone a long way away from our judicial
responsibility.
Justice