State v. Wooster

No. 97-592

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 22

STATE OF MONTANA,

Plaintiff and Respondent,

RONALD C. WOOSTER,

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Brad L. Betkc, (argued) Attorney at Law, Butte, Montana

For Respondent:

Ron. Joseph P. Mazurek, Attorney General

Robert M. McCarthy, S11terBox County Attorney,
Brad Newman, (argued) Chief Deputy County Attorney, Butte, Montana

Argued: April 30, 1998
Submitted: June 23, 1998
Decided: February 18, 1999

Filed:
Justice W . William Leaphart delivered the Opinion o f the Court.

([il Ronald C , Wooster (Wooster) appeals from the decision o f the Second Judicial

District Court, Silver Bow County, concluding that Wooster continues to suffer from a

mental disease or defect that causes him to be a danger to society and prevents his release

from Montana State Hospital. W e remand for further proceedings consistent with this

opinion.

Standard o f Review

72 W e review a district court's findings o f fact to determine whether they are clearly

erroneous. interstate Production Credit v. DeSaye (1991),250 Mont. 320, 323, 820 P.2d

1285, 1287.

Factual and Procedural Background

73 During an investigation o f an apparent accident on U.S. Highway 10 near Butte,

Montana, highway patrol officersdiscovered two dead passengers in a truck that Wooster

had driven. The passengers were Wooster's two daughters, two-and-a-half-year-old Stacy

and six-year-old Kelly. Both girls had died because o f fatal neck wounds that were inflicted

with an axe. Wooster later confessed to thc murders and he was charged with two counts o f

deliberate homicide.

74 The District Court committed Woostcr to Warm Springs State Hospital (hereafter,

Montana State Hospital) for a psychiatric examination to determine whether Wooster was

competent to stand trial. In a rcport submitted in April, 1978, Katherine Gallagher (Dr.
Gallagher), a psychologist with Montana State Hospital, diagnosed Wooster with

"Schizophrenia, Chronic Undifferentiated Type," and determined that he was incompetent

to stand trial. Dr. Gallagher reported that Wooster told her that he had not drunk alcohol or

used drugs on the day that his daughters died. Dr. Gallagher also reported that when his

daughters died, Wooster "was thinking about saving mankind as he was heaven-sent and that

was his purpose. . . . Now, he does not want to die or be crucified, although he is still God."

15 In late October, 1978 the District Court held a hearing to determine whether Wooster

had mental capacity to understand the proceedings and "to appreciate the criminality o f h ~ s

conduct or to conform his conduct to the requirements o f law at the time o f the commission

o f the offensecharged." In an order entered in November, 1978 the District Court concluded

that Wooster was incompetent as a result o f a mental disease or defect and that he "suffered

from a mental disease or defect at the time o f the commission o f the offense for which he is

cha~ged. ; ~ l i i d ~
lendered htm incapable o f appreciatiiig the criminality o f his c~iiduct r
G

conforming his conduct to the requirements o f the law." The District Court acquitted

Wooster o f the two charges o f deliberate homicide, and committed him to the custody o f the

Superintendent o f Montana State Hospital for "custody, carc, and treatment." The District

Court set a hearing in December, 1978, pursuant to 5 95-508, RCM (1947), to determine

Wooster's mental condition and to determine whether Wooster could then be safely

discharged without danger to others. Following the December, 1978 hearing the District

Court found that Wooster continued to suffer from a mental disease or defect that made him
a danger to himself and others if discharged or released from the hospttal. The District Court

remanded Wooster to the permanent custody of Montana State Hospital but recognized his

statutory right to future hearings "regarding his mental condition."

1
'6 T May, 1990, Wooster petitioned the District Court for release from Montana State
n

Hospital. The State of Montana (the State) opposed Wooster's petition and moved for a

psychiatric examination of Wooster pursuant to 55 46-14-302 and -303, MCA (1989). In

response, the District Court appointed Dr. William Stratford (Dr. Stratford), a psychiatrist,

to evaluate the mental condition of Wooster. The District Court ordered that Dr. Stratford

retain a clinical psychologist to assist him in that examination.

77 Dr. Stratford engaged Michael J. Scolatti, Ph.D. (Dr. Scolatti), a clinical psychologist.

Dr. Scolatti found that Wooster had originally been diagnosed with Schizophrenia, Chronic

Undifferentiated Type and that he had been diagnosed with that condition during his first

rhree years of confinement. Xowcver, in Wooster's most recent psychological evaluation,

Wooster was diagnosed with antisocial personality disorder, alcohol dependency that was in

remission, and "psychoactive substance abuse not otherwise specified." Dr. Scolatti also

tested Wooster and rcported that his test results "are indicative of a long-term ingrained

personality disorder, primarily that of an Antisocial Personality Disorder." Wooster

disclosed to Dr. Scolatti that when he was 18 years old, he became drunk and smoked "dope"

while baby sitting and that he exposed himself to a child. Wooster blamed that conduct on

1 1 use of drugs and alcohol and said it was an "isolated" incident. Dr. Scolatti observed that
1s
when asked about the murder of his two daughters, "Mr. Wooster gave a lengthy, detailed,

and apparently rehearsed tale with Satanic overtures and UFOs. However, when it came to

describing the actual homicides, Mr. Wooster experienced a complete blackout. Then after

completing the murders Mr. Wooster's memory returned." Dr. Scolatti concluded that "[ilt

is unusual to have such a circumscribed memory loss if caused by alcohol consumption or

psychosis." Dr. Scolatti found that Wooster had "minimal" remorse and no insight into his

crimes and that Wooster had not received enough treatment for Dr. Scolatti to conclude that

Wooster was no longer a danger to society. Dr. Scolatti recommended that Wooster receive

anger management therapy and treatment for his chemical dependency and urged that "all

precautions and therapeutic avenues should be exhaustively utilized before he is released."

78 When Dr. Stratford evaluated Wooster in 1990, Wooster had not received any

medication in six or seven years. Dr. Stratford noted that in 1970, Wooster was voluntarily

committed to Warin Springs State Hospital and that his files showed that hc had exposed

himself to a child. In March, 1990, Wooster had been diagnosed as a Chronic

Undifferentiated Schizophrenic and as having an antisocial personality disorder. Dr.

Stratford concluded that Wooster had not received any treatment that would address his

antisocial capacity or his psychosis, if indeed his psychosis existed, nor had Wooster

received treatment for drug and alcohol abuse and his "sexual dysfunction." Dr. Stratford

also found that Wooster suffered from a personality disorder, "primarily antisocial type." Dr.
Stratford concluded that Wooster "poses a substantial threat or risk to others if released, and

should not be released."

19 In March, 1991 the District Court determined that Wooster continued to suffer from

a mental disorder, "specifically an Antisocial Personality Disorder," and an "alcohol and

chemical dependency." Further, the District Court concluded that treatment or therapy to

address Wooster's various issues was necessary before he could be safely released. The

District Court denied Wooster's petition for release, concluding that "the record is clear that

if released, the defendant will NOT BE ADEQUATELY SUPERVISED OR

MONITORED."

:I10 Wooster filed a p r o se petition for release in November, 1994 pursuant to 5 46-14-

303, MGA (1993). His petition was supported by a report from Ardean Moore, M.D. (Dr.

Moore) of the Montana State Hospital staff. Dr. Moore found that Wooster was not

psychotic and that he did not have a sel.ious mental iiii~ess.She recon~mended serious
that

consideration be given his discharge from Montana State Hospital. The District Court

appointed counsel to represent Wooster and appointed Dr. Stratford to conduct an

independent examination of Wooster's mental condition.

71 1 Dr. Stratford filed his report with the District Court in January, 1995. Dr. Stratford

found that Wooster still had not been treated for the sexual incident that involved a child.

Dr. Stratford reported that Wooster told a group that he was " 100% sure that the experiences

would reoccur if I return to drugs or alcohol," and that if he drank again he would "kill
himself." Dr. Stratford concluded that Wooster was dotng well because of the hospxtal's

structure, which he described as "akin to a policeman at the elbow." Dr. Stratford determined

that Wooster's original psychotic symptoms had disappeared but that they "certainly" could

reoccur. Dr. Stratford concluded that Wooster was likely to abuse alcohol and other

substances, that he was still an untreated sex offender, and that his "personality style with his

subsequent impulsivity or hostility" was a concern. Dr. Stratford urged that Wooster not be

released.

'712 At Wooster's request, the District Court appoint Susan Sachsenmaier, Ph.D. (Dr.

Sachsenmaier) to evaluate him. In her report, Dr. Sachsenmaier expressed concern over

Wooster's reported comment that he would kill himself if he resumed drinking or using

drugs. However, she concluded that this statement reflected a "belief system" that Wooster

held, that the belief system was not a mental disease or defect, and that it could be altered

through therapy. Dr. Sachsenmaier volunteered that rhere was a "legai argument' that

Wooster did not meet "the threshold standard for being a danger to himself or others due to

mental disease or defect." She did not support his petition for discharge but recommended,

nlstead, that he be placed on conditional release after he received sex offender and chemical

dependcncy treatment.

F13 The District Court held a pretrial conference in August, 1995. The District Court

requested that Drs. Sachsenmaier and Stratford jorntly prepare and propose a conditional

release plan for Wooster. Doctors Stratford and Sachsenmaier presented the District Court
with a 5-year conditional release proposal in December, 1995. The District Court held a

hearing in November, 1996.

714 In September, 1997, the District Court filed its find~ngs fact. conclusions of law and
of

order regarding Wooster's petition for release. The District Court found that the mental

disease or defect that Wooster had in 1978 and that resulted in his acquittal of deliberate

homicide charges remained substanhally unchanged and prevented h ~ release from Montana
s

State Hospital. The District Court determined that Wooster's mental disease or defect was

an antisocial personality disorder and illat Wooster continued to suffer from a chemical

dependency and "untreated sexual offender tendencies." The District Court concluded that

Wooster would pose an unreasonable threat to himself or others if released. Finally, the

District Court concluded that many of the conditions proposed by Drs. Sachsenmaier and

Stratford could not be monitored by the staff of Montana State Hospital and that the

iomtditional release plan therefore couX not adequately protect the public.

Discussion

715 Wooster presents one issue for review: Did the District Court clearly e n in findmg

that Woostcr currently suffers from a mental disease or dcfcct that causes him to be

dangerous and bars his release?

1/16 Although Wooster has not challenged the constitutionality of his commitment, it is

appropriate that we begtn with an overview of several US. Supreme Court decwons that

have recognized the circumstances under which a state may confine a defendant acquitted
of a crime by reason of his mental condition. In Jones v. United States (1983), 463 U.S. 354,

103 S.Ct. 3043,77 L.Ed.2d 694, the Court held that an insanity acquittee may be confined

so long as he or she is both mentally ill and dangerous. In subsequent decisions, the Court

has explored further the meaning of n~entallyill and dangerous; however, Jones' two

requirements of mental illness and dangerousness apply in the present case.

517 In Foucha v. Louisiana (1992), 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437,

defendant Terry Foucha (Foucha) was found not guilty by reason of insanity of the illegal

discharge of a firearm and aggravated burglary in 1984. Under the Louisiana statute then in

effect, the state could confine a person if he was found dangerous; a con~panion
finding of

mental illness was not required. Foucha was committed to the East Feliciana Forensic

Facility (Feliciana) "until such time as doctors recommend that he be released, and until

further order of the court." Fouclza, 504 U.S. at 74, 112 S.Ct. at 1782, I 18 L.Ed.2d at 444.

!n 1988, the superintendent of Feliciana rccommcnded that Fuueha bc relcascd. h thrce-

member panel assessed Foucha, reported that there was no evidence of mental illness, and

recommended Foucha's conditional discharge. The trial judge appointed a sanity commission

comprised of two doctors who had evaluated Foucha before his trial. The doctors concluded

that Foucha was in remission from mental illness but stated they could not certifq that he

would not be a danger to himself or others if released. One of the doctors testified at a

hearing that Foucha had probably suffered from a drug-induced psychos^, that he had

recovered from that temporary condition, that he was "in good shape" mentally, and that he
had "an antisocial personality, a condition that is not a mental disease and that is untreatable."

Fouchn, 504 U.S. at 75, 112 S.Ct. at 1782, 118 L.Ed.2d at 445. The trial court ruled that

Foucha was dangerous to himself and others and returned him to Feliciana.

718 However, the Court in Foticha concluded that a committed acquittee is "entitled to

release when he has recovered his santty or is no longer dangerous." Foucha, 504 U S . at 77,

112 S.Ct. at 1784, 118 L.Ed.2d at 446 (citation omitted). Because the State did not contend

that Foucha was mentally ill at the time of the hcaring, the Court concluded that "keeping

Foucha against his will in a mental institution is improper absent a determination in civil

commitment proceedings of current mental illness and dangerousness." Fouchu, 504 U S .

at 78,112 S.Ct. at 1784, 118 L.Ed.2d at 447. The Court in Fouchn recognized that Foucha

had a liberty interest in being free from indefinite confinement in a mental facility. Fouclzn,

504U.S. at 82, 112 S.Ct. at 1786, 118 L.Ed.2dat449,

Ti9 in Kansas v. Hendricks (1997),52i U.S. 346, 1 i 7 S.Ct. 2072, i38 L.Ed.2d 501, the

Court made clear that no particular language is necessary to find that a defendant has a

mental condition that, together with his dangerousness, justifies his confinement. In 1994,

Kansas passed the Sexually Violent Predator Act (the Predator Act) which "establishes

procedures for the civil commitment of persons who, due to a 'mental abnormahty' or a

'personality disorder,' are likely to engage in 'predatory acts of sexual violence.' " Hendvickr,

521 U.S. at 350, 117 S.Ct. at 2076, 138 L.Ed.2d at 505. Pursuant to the Predator Act, thc

State committed Leroy Hendricks (Hendricks), an inmate with a history of sexually
molesting children, who was due to be released soon after the Predator Act was enacted. The

Kansas Supreme Court struck the Predator Act, holding that "its pre-commitment condition

of a 'mental abnormality' did not satisfy . . . [the] 'substantive' due process requirement that

involuntary civil commitment must be predicated on a finding of 'mental illness.' "

Hendriclis9521 U.S. at 350, 117 S.Ct. at 2076, 138 L.Ed.2d at 508.

120 However, the Hetiendricks Court concluded that the Predator Act's definition of "mental

abnormality" did meet substantive due process requirements. Hendricks, 521 U.S. at 356,

1 17 S.Ct. at 2079, 138 L.Ed.2d at 51 1. The Court observed that it had upheld civil

commitment statutes when "they have coupled proof of dangerousness with the proof of

some additional factor, such as a 'mental illness' or 'mental abnormality.' " Hendricks, 521

U.S. at 358, 117 S.Ct. at 2080, 138 L.Ed.2d at 512-13. The Hendricks Court noted that "we

have never required State legislatures to adopt any particular nomenclature in drafting civil

comnrilmeni statutes." h'e,~d~-ickc, U S . rti 359, 117 S.Ct. at 208:, 138 L.Cd.26 at 513.
521

1 Wooster contends that the "threshold" issue is whether he "currently suffers from the

mental disease or defect that resulted in his [original] commitment." Wooster argues that

the District Court and several mental health professionals have concluded that he has an

antisocial personality disorder but that 5 46-14-101, MCA, specifically excludes antisocial
personality disorder from consideration as a mental disease or defect. Wooster contends that

without a diagnosis of mental illness or disorder, the Court is required by statute and by the

Court's decision in Fouchu to grant him a conditional release. Thus, Wooster argues that
the State has failed to prove that Wooster is mentally ill and that the District Court erred in

finding that he has a mental disease or defect that causes him to be dangerous and thus

concluding that he must remain confined.

722 Wooster relies primarily on the Court's decision in Foucha in arguing why he should

be released. Wooster argues that he was originally committed, in 1978, because of a drug-

nlduced psychos~s that after years of successful treatment he no longer has a serious
but

mental disease or defect: he is presently diagnosed with antisocial personality disorder.

Wooster asserts that the facts of his case arc similar to Foucha's because "[olriginally Foucha

and Wooster were both acquitted because they were diagnosed as suffering from the same

serious mental disease or defect, specifically drug-induced psychosis." Wooster argues that

like the defendant in Foucha, he too is not mentally ill.

123 We determine, however, that the record does not support Wooster's argument that the

facts in his case parallel the facts in Foucha. Contrary to his position on appcal, Woostcr

maintained after the murders that he was not under the influence of drugs or alcohol at the

time of the offenses. In addition, Dr. Scolatti concluded that Wooster's "blackout" of the

events of the murder was not consistent with memory loss caused by alcohol consumption

or psychosis. Only recently has Wooster changed his story to assert that he suffered from

"drug-induced psychosis" when he killed his daughters. We also note that contrary to

Wooster's suggestion. the Court in Fouclzn d ~ d conclude that antisocial personality
not

disorder is not a mental illness. As previously noted, the State in Foucha did not contend
that Foucha was mentally ill and the Fozccha Court did not dcterminc whether antisocial

personality disorder was a mental illness.

t24 Wooster also argues that his situation is distinguishable from that of the defendant in

State v. Woods (1997), 285 Mont. 46, 945 P.2d 918. In Woods, defendant Paul Woods

(Woods) was acquitted on the ground of mental disease or defect of the charge of felony

sexual assault on children. Woods was diagnosed as having borderline mental retardation

and "other sexual deviation." Woods, 285 Mont. at 48,945 P.2d at 919. He was committed

to Montana State Hospital. In 1994 Woods petitioned for discharge. Mental health experts

agreed that Woods was not seriously mentally ill. In affirming the district court's order that

Woods remain confined, this Court determined that "the fact that a mental condition is in

remission does not preclude a finding that the person continues to suffer from the condition

and is in need of further detention." Woods, 285 Mont. at 54, 945 P.2d at 923. Wooster

characterizes the defe~dant Phods as a sex offender and pedcphile who had rejected
in

treatment and had not changed since his commitment. Wooster argues however that unlike

Woods, his condition has changed; he no longer has a mental disease or defect.

725 In addition, Wooster contends that the State has not met its burden of proving that he

is dangerous. Wooster argues that his mental evaluations show that he only poses a risk of

future offenses if other events, including substance abuse, also occur and that he is not an

~mmediate
present danger, as required under Montana law.
1/26 The State's position may be summarized as follows. Wooster has an antisocial

personality disorder that, coupled with his chemical dependency and untreated sex offender

"tendencies," is a mental disease or defect. Foucha should be distinguished because in

Folccha there was no controversy regarding the mental health of the defendant. Moreover,

the Court's decision in Hendricks established that substantive due process does not require

specific nomenclature to descnbe a person's mental condition. Thus, the District Court need

not have invoked any particular words in finding that Wooster had a mental disease or defect

as a result of which he is a danger to himself or to others. Drawing on FVoods, the State

argues that a mental illness in remission can constitute a mental illness for determining

whether to continue confinement of an acquittee. Thus, while Wooster's chemical

dependency may be in remission, he nonetheless has a mental disease or defect that includes

chemical dependency. Finally, the State argues that Wooster's evaluations show that he

serrrains dangerous if releasid.

727 Before addressing whether the District Court erred in concluding that Wooster suffers

from a mental disease or defect causing him to be dangerous, we consider two related issues

that Wooster has raised. First, we agrce with the State that Wooster's mental health

e l aluations show that he would be dangerous if released without supervision and further

treatment. Moreover, Wooster has not challenged the District Court's finding that he could

not be supervised adequately by Montana State Hospital. The Distnct Court did not err in

concluding that Wooster poses a continuing danger to himself and other persons.
1/28 Second, we reject Wooster's argument that the "threshold" issue is whether his mental

disease or defect is the same mental disease or defect that he had &hen he was originally

committed. Wooster apparently interprets $ 46-14-302(6), MCA, to mean that in order to

continue confinement of a person acquitted by reason of lack of mental state (an acquittee),

the court must find that the acquittee has the same mental disease or defect that he had when

originally committed. The Court in Fouclza remarked that "Due Process requlres that the

nature of commitment bear some reasonable relation to the purpose for which the individual

is committed." Foucha, 504 U.S. at 79, 112 S.Ct. at 1785, 118 L.Ed.2d at 447 (citing Jones,

463 U.S. at 368). This dicta in Foucha, however, does not inexorably lead to Wooster's

interpretation of $ 46-14-302(6), MCA. As the Court in Jofzes observed, "[tlhe purpose of

commitment following an insanity acquittal, like that of civil commitment, is to treat the

individual's mental illness and protect him and society from his potential dangerousness."

Jones, 463 U.S. at 358, 103 S.Ct. at 3351-52, 77 L.Ed.2d at 7CS. We do not understand

Jones to require that when an acquittee is determined to he mentally ill and dangerous as a

result of that mental illness, the acquittee must be released if his mental illness is not the

same mental illncss as that from which he suffered at the time of his original commitment.

829 We note moreover that Wooster's apparent interpretation of ji 46-14-302(6), MCA,

would require difficult and confusing comparisons between the original and prcscnt mental

conditions of an acqutttee. We are not persuaded that such comparisons are necessary nor

that they are feasible. As the Jones Court remarked:
 We have recognized repeatedly the "'uncertainty of diagnosis in this field and
the tentativeness of professional judgment. The only certain thing that can be
said about the present state of knowledge and therapy regarding mental disease
is that science has not reached finality ofjudgment."

Jones, 463 U.S. at 365, 103 S.Ct. at 3050, 77 L.Ed.2d at 705, n.13 (citations omitted).

q30 We conclude that under Cj 46-14-302(6), MCA, in determining whether an acquittec

"no longer suffers from a mental disease or defect," the appropriate inquiry is whether the

acquittee suffers from a present mental disease or defect "that causes the person to present

a substantial risk." Section 46-14-302(6), MCA. Compare Fouchu, 504 U.S. at 78, 112

S.Ct. at 1784, 118 L.Ed.2d at 447 (concluding that "keeping Foucha against his will in a

mental institution is improper absent a determination in civil commitment proceedings of

current mental illness and dungerousness") (emphasis added); FVoods, 285 Mont. at 53, 945

P.2d at 922 (concluding "the question under Cj 46-14-302. MCA. is . . . [simply] he

suffers from a mental disease or defect that causes him to present a substantial risk").

Consistent with the requirements of Foucha, the procedures for continued confinement of

an acquittee set forth rn $5 46-14-301 et seq., MCA, are c~vil
proceedings that require the

State to prove by clear and convincing evtdence that an acquittee has a mental disease or

defect that causes him or her to be dangerous. See Cj 46-14-302(6)(b), MCA.

73 1 In determining whether the District Court erred in finding that Wooster had a mental

diseasc or defect, we review Montana's procedures for the commitment of an acquittee.

Section 46-14-301, MCA. provides in pertinent part:
 Commitment upon finding of not guilty by reason of lack of mental state
--hearing to determine release or discharge. (1) When a defendant is found
not guilty for the reason that due to a mental disease or defect the defendant
could not have a particular state of mind that is an essential element of the
offense charged, the court shall order a predisposition investigation. . . .
....
(5) A professional person shall review the status of the person each
year. At the time of the annual review, the director of the department of public
health and human services [the director] or the person or the representative of
the person may petition for discharge or release of the person.

Section 46-14-301, MCA. Section 46-14-101, MCA, provides that "the term 'mental disease

or defect' does not include an abnormality manifested only by repeated criminal or other

antisocial behavior." Section 46-14-101, MCA.

132 Section 46-14-302, MCA, provides for the discharge or release of acquittees. The

director may apply for the discharge or release of an acquittee in a report to a court. See

3 46-14-302(!), MCA. The court "shall then appoint at least one person who is either a

qualified psychiatrist or licensed clinical psychologist to examine the person and to report

as to the person's mental condition." Section 46-14-302 (3), MCA. Moreover,

If the court is satisfied by the report filed under subsection (1) and the
testimony of the reporting psychiatrist or licensed clinical psychologist that the
committed person may be discharged or released on condition because the
person no longer suffers from a mental disease or defect that causes ihe
person topresent. . . a substantial risk of an imminent threat ofphysical injury
to the pet-son or others, or a substantial risk of substantial property damage,
the court shall order the person's discharge.

Section 46-14-302 ( 5 ) , MCA (emphasis added). If the court is not satisfied, it shall order

a hearing to determine whether the acquittee may be safely released or discharged. See 3 46-

14-302(6), MCA. Such hearings are civil proceedings. See 5 46-14-302(6)(b), MCA
733 Thus, having affirmed the District Court's conclusion that Wooster is dangerous, the

central issue is whether the District Court erred in finding that Wooster had a mental disease

or defect that "causes the person to present a substantgal risk of an imminent threat of

physical injury to the person or others." Section 46-14-302(5), MCA. A determination of

whether the District Court erred in finding that Wooster had such a mental disease or defect

requires interpretation of 5 46-14-101, MCA. Section 46-14-101, MCA, does not purport

to define the term mental disease or defect; rather it simply excludes "repeated criminal or

other antisocial behavior." The Montana statute was adopted from the Model Penal Code

drafted by the American Law Institute (ALI).

734 Like the Montana Code, the Model Penal Code does not define "mental disease or

defect," but simply declares that mental disease or defect "does not include an abnormality

manifested only by repeated criminal or otherwise antisocial behavior."' Model Penal Code

5 4.0; at 163. Tire ALI explained ikat "@]part from this qualification, the Code pursues the

only course that was deemed feasible. It treats the question of disease as one of fact, to be

determined by the court or jury on the evidence presented in the cases that arise. As medical

understanding may develop in such areas, for example, as brain chemistry, it can thus hake

its proper impact on the application of the law." Model Penal Code 5 4.01 at 174-75.

The Montana legislature indicated that it did not move 5 46-14-101, MCA, to the
definition section because "[wlhile this statute [§ 46-14-1011 appears to be a definition of
'mental disease or defect,' it is actually an exclusion." See Commission Comments, 46-
14-101, MCA.
735 Although the determination of mental disease or defect is one of fact, the absence of

an affirmative definition of mental disease or defect, in 5 46-14-101, MCA. invites

confusion. 111 the present case, Drs. Stratford and Sachsenmaier agreed that there was

something about Wooster's mental condition that required professional attention. They

further agreed that because of that mental condition, Wooster was a substantial risk to

himself or others if he did not receive treatment. However, they disagreed whether his

mental condition was a mental disease or defect under Montana law. Working within a

statutory void, the District Court attempted to describe Wooster's mental disease or defect

in light of the language employed in the mental health evaluations of Wooster's mental

condition. Although Drs. Stratford and Sachsenmaier agreed that Wooster has an antisocial

personality disorder, they disagreed whether antisocial personality disorder was limited to

abnormalities "manifested only by repeated criminal or other antisocial behavior." Section

46-14-iOi, MCA. As a consequence, ine District Court's conclusion of mental disease or

defect embodied the ambiguities in the definition of the antisocial personality disorder that

was attributed to Wooster.

136 We note that a district court's definition of mental disease or defect need not be

identical with inedicai definitions of mental disease or defect. As the Court in Iiendr-icks

remarked,

Not only do "psychiatrists disagree widely and frequently on what constitutes
mental illness," but the Court itself has used a variety of expressions to
describe the mental condition of those properly subject to civil confinement.
. . . Legal definitions, however, which must "take into account such issues as
 individual responsibility. . . and competency," need not mirror those advanced
by the medical profession.

Hendricks, 521 U.S. at 359, 117 S.Ct. at 2080-81, 138 L.Ed.2d at 513-14

1/37 Moreover, we are not persuaded that the exclusion, in 5 46-14-101, MCA, of "an

abnormality manifested only by repeated criminal or other antisocial behavior" extends to

antisocial personality disorder. Dr. Sachsenrnaier assumed that in enacting 5 46-14-101,
MCA, the legislature meant to exclude not only abnormalities characterized only by criminal

conduct but antisocial personality disorder itself. However, the American Psychiatric

Association has remarked:

Antisocial Personality Disorder must be distinguished from criminal behavior
undertaken for gain that is not accompanied by the personality features
characteristic of this disorder. Adult Antisocial Behavior . . . can be used to
describe criminal, aggressive, or other antisocial behavior that comes to
clinical attention but that does not meet the full criteria for Antisocial
Personality Disorder. Only when antisocialpersonality traits are inflexible,
maladaptive, and pet,sistent and cause significant functional impairment or
subjective distr-ess do they constitute Antisocial Personality Disorder.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders,

fourth edition, 649 (1994) (italics added). Thus, we conclude that a person with antisocial

personality disorder has a condition that is manifest by much more than "only . . . repeated

criminal or other antisocial behavior" and that this condition is not excluded by $46-14-101,

MCA. Section 46-14-1 01, MCA

?38 In determining whether to release or to continue the confinement of an acquittee, a

district court must consider the mental condition of an acquittee but also make the
independent determination whether an acquittee has a mental disease or defect. However,

when the District Court concluded that Wooster had the mental disease or defect of antisocial

personality disorder, the District Court conflated the medicaljindirzg of antisocial personality

disorder with the legal conclusion of mental disease or defect. The lack of an affirmative

definition of mental disease or defect in 5 46-14-101, MCA, clearly invited such confuston.

Accordingly, we determine that $5 46-14-301 et seq., MCA, are unworkable without an

affirmative definition of mental disease or defect.

739 We conclude that mental disease or defect, as set forth under 3 46-14-101, MCA,
requires an affirmative definition even as we recognize that 5 1-2-101, MCA, provides that

"the office of the judge is simply to ascertain and declare what is in terms or in substance

contained therein, not to insert what has been omitted or to omit what has been inserted."

Section 1-2-101, MCA. In construing 5 1-2-101, MCA, this Court has determined that

"[wjhere Itne language is clear and unambiguous, no further inleqxetation is reqilired." Stale

ex rel. Keyes v. 13th Jud. Dist. Ct., 1998 MT 34,T 15,288 Mont. 27,T 15, 955 P.2d 639,

7 15. However, we conclude that "mental disease or defect" is ambiguous.

740 We therefore consider the intent of the legislature. See 5 1-2-102, MCA, providing

that "the intention of the legislature is to be pursued if possible." The clear intent of the

legislature is that courts Interpret the term "mental disease or defect." See 5 46-14-302(5),
MC.4, providing that "[qf the court is satisJied by the report . . . that the committed person

may be discharged or released on condition because the person no longer suffers &om a
mental disease or defect" (emphasis added). The plain meaning of this statutory language

is that courts shall determine whether an acquittee has a mental disease or defect. To make

that determination, courts must interpret mental disease or defect. Thus, in concluding that

an affirmative definition of 8 46- 14-101, MCA, is appropriate, this Court does not legislate

but fills a statutory void that the legislature has clearly intended that Montana's courts

address.

1/41 Although many states, like Montana, offer no affirmative definition of mental disease

or defect, a number of states have such affirmative statutory definitions. See, e.g., FLA.

STAT. ANN. i j 916.106(11) (West 1999) ("an impairment. . . [that] substantially interferes

urith a defendant's ability to meet the ordinary demands of living"); GA. CODE ANN. 3 27-

1503(2) (1998) (Harrison 1998) ("mentally ill" means a "disorder of thought or mood which

significantly impairs . . . ability to cope with the ordinary demands of life"); IND, CODE

ANN. 3 35-41-3-6 (iexis 1998) (defining mental disease oi defect as "a severely abnormal

mental condition that grossly and demonstrably impairs a person's perception"). Under New

York's statutes, to retain a committed defendant, the State must establish that a defendant has

a dangerous mental disorder or that he or she is mentally ill. See N.Y. CRIMINAL

PROCEDURE LAW $ 330.20 (McKinney 1994). Section 330.20(I)(c) states that

" 'Dangerous mental disorder' means: (i) that a defendant currently suffers from a 'mental

illness' as that term is defined in subdi~isioil
twenty of section 1.03 of the mental hygiene law

and (iij that because of such condition he currently constitutes a physical danger to himself
or others." N.Y. CRIMINAL PROCEDURE LAW 5 330.20(1)(c) (McKinney 1994).

Section 1.03(20) provides:

"Mental illness" means an affliction with a mental disease or mental condition
which is manifested by a disorder or disturbance in behavior, feeling, thinking,
or judgment to such an extent that the person afflicted requires care, treatment
and rehabilitation.

N.Y. MENTAL HYGIENE LAW 8 1.03(20) (McKinney 1996).

742 Among the affirmative definitions of mental disease, defect or illness that states have

enacted, we favor that adopted by New York. The New York statute carefully eschews

ambiguous mental health terms in favor of a clear workable legal definition. We conclude

that an affirmative definition of mental disease or defect complements the intent of

Montana's legislature. An affirmative definition of mental disease or defect will enable

district courts to reliably and appropriately distinguish the legal conclusion of mental disease

or defect from the often confusing and inconsistent medical findings that concern an

acquittee's mental condition. We therefore modify and adopt New York's affirmative

definition of mental illness. See N.Y. MENTAL HYGIENE LAW 5 1.03(20) (McKtnney

1996).

1/43 We hold that mental dtsease or defect, as set forth under 5 46-14-101, MCA, means

an affliction with a mental disease or mental condition that is manifested by a disorder or

disturbance in behavior, feeling, thinking, or judgment to such an extent that the person

afflicted requires care, treatment, and rehabilitation. We further hold that this affirmative

definition of mental disease or defect complements but does not alter the exclusion, in 5 46-
14-101, MCA, of "an abnormality manifested only by repeated criminal or other antisocial

behavior."

744 We remand this case for further proceedings in which the parties through their experts

and the District Court will revisit the issue whether Wooster has a mental disease or defect

as we have defined it herein.

Justice /

Wc concur:
/
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