April 14 2011
DA 10-0242
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 74
IN THE MATTER OF:
D.K.D.,
Respondent and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DD-2009-01
Honorable E. Wayne Phillips, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender, Lisa S. Korchinski, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Matthew T. Cochenour,
Assistant Attorney General, Helena, Montana
Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana
Submitted on Briefs: February 23, 2011
Decided: April 14, 2011
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 D.K.D., a seriously developmentally disabled individual, was committed by the
District Court to the Montana Development Center (MDC) for a period of one year. He
does not appeal from the order of commitment, but does appeal from the portion of the
commitment order that authorized MDC staff and treating professionals to administer
medication to him on an involuntary basis, pursuant to MDC policy. For the reasons set
forth below, we affirm.
ISSUES
¶2 A restatement of the dispositive issue on appeal is whether the District Court
committed error, much less plain error, when in its order of commitment, it authorized
MDC staff to administer medication to D.K.D. on an involuntary basis pursuant to MDC
policy.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 D.K.D., who is now twenty-three years old, began receiving mental health
treatment when he was six years old after he displayed out-of-control behavior and
started a fire in his home. He suffers from both a developmental disability and mental
illness, and has been in and out of treatment centers in Montana and throughout the
United States since he was seven years old. D.K.D. has a history of behaving in a
manner that places himself and others in danger, and he has made multiple suicide
attempts over the years. He has also received several diagnoses over the course of his
life, including oppositional defiant disorder, borderline personality disorder, and mild
mental retardation. At 6' 4" and 400 pounds, D.K.D. is morbidly obese and has a history
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of difficultly functioning in a community environment, poor psychosocial support and
resources, and refusal to engage in personal care.
¶4 In the last three years, D.K.D. has received treatment in both community and
institutional settings. He has been in and out of Montana State Hospital (MSH) and
MDC since 2005. From January to August 2009, D.K.D. received community-based care
through Creative Options, Inc. in Lewistown, Montana. During his tenure in Lewistown,
D.K.D. lived in his own apartment and received 24-hour care and supervision from
Creative Options staff. In August 2009, D.K.D.’s case manager requested the State file a
petition for involuntary commitment after D.K.D. repeatedly engaged in behaviors that
posed risk of harm to himself and the Creative Options staff.
¶5 Upon the filing of the State’s petition for involuntary commitment, D.K.D. was
appointed counsel and referred to the Residential Facility Screening Team (RFST) to
determine the most appropriate placement for him. The RFST concluded D.K.D. was
seriously developmentally disabled, posed an imminent risk of harm to himself and
others, and could not be effectively or safely treated in a voluntary community setting.
The RFST recommended a community treatment plan that required the participation of a
medical doctor, a psychiatrist, and a mental health counselor.
¶6 In September 2009, before a hearing on the State’s petition was held, D.K.D. was
admitted to MSH on an emergency basis and eventually involuntarily committed, after he
made numerous serious threats to harm himself and the Creative Options staff. D.K.D.’s
case manager stated that the staff was fearful of D.K.D.’s physical size and violent,
tempestuous outbursts, and felt they had neither the knowledge to assist D.K.D. nor the
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ability to control him. While at MSH, D.K.D. repeatedly attempted to harm himself and
threatened other MSH patients and staff. D.K.D.’s response to medication while at MSH
was unpredictable as well because, while he generally took his medication willingly,
there were other times when he refused to do so.
¶7 After several months at MSH, D.K.D.’s treating physician, Dr. Carlson, requested
that the State petition to have D.K.D. committed to MDC because Dr. Carlson believed
MDC would be better equipped to meet D.K.D.’s specific mental health needs. In his
January 21, 2010 Psychiatric Evaluation for Recommitment, Dr. Carlson and the MSH E-
wing treatment team recommended D.K.D. receive long-term care at MDC with a strict
behavior plan as the most appropriate treatment. Additionally, Dr. Carlson stated that
due to D.K.D.’s extreme lability (defined as “characterized by rapidly shifting or
changing emotions, as in bipolar disorder and certain types of schizophrenia; emotionally
unstable” by Mosby’s Medical, Nursing, & Allied Health Dictionary 879 (Kenneth N.
Anderson et al., eds. 4th ed., Mosby 1994)), an existing order that authorized the
administration of involuntary medication was an important tool and should be continued
in the event D.K.D. “again reach[es] a prolonged period of oppositional, self-destructive,
and/or other violent behavior.”
¶8 On January 26, 2010, the State filed a petition for the involuntary commitment of
D.K.D. to MDC. The District Court again appointed counsel to represent D.K.D. and
referred him to the RFST for a recommendation of appropriate treatment. The RFST
concluded D.K.D. was seriously developmentally disabled, and posed an imminent risk
of harm to himself and others “due to his self-injurious behavior, suicide threats, physical
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aggression towards others, verbal threats to harm or kill others, and his physical size.”
The RFST recommended D.K.D. be committed to MDC for up to one year and that MDC
follow a multidisciplinary team approach to D.K.D.’s treatment.
¶9 On March 16, 2010, the District Court held a hearing on the petition for
involuntary commitment. Present at the hearing were D.K.D., D.K.D.’s attorney, and the
prosecutor. Dr. Carlson and the chairperson of the RFST, Leslie Howe, appeared via
videoconference. During the proceeding, Howe explained the rationale behind the
RFST’s recommendation. Near the end of the hearing and consistent with his prior
written report, Dr. Carlson informed the District Court that the order authorizing MSH
staff to administer medication to D.K.D. involuntarily had been “one of the most
important tools” in D.K.D.’s recent treatment at MSH.
¶10 Ultimately, the District Court found that D.K.D. posed an imminent threat to
himself and others and committed him to MDC for up to one year. Near the end of its
order, the court inserted the following language: “D.K.D. shall be committed to
treatment at Montana Development Center for a period of no more than one year from
March 16, 2010. The staff and treating professionals at Montana Development Center
shall have the authority to administer medication to D.K.D. on an involuntary basis,
pursuant to their policy.” D.K.D.’s counsel did not object to the commitment order or to
the inclusion of the language quoted above. On appeal, D.K.D. does not challenge the
order of commitment as a whole; rather, he appeals only the portion of the District
Court’s order authorizing administration of involuntary medication. D.K.D. requests that
we exercise plain error review and strike that language from the court’s order.
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STANDARD OF REVIEW
¶11 At the outset, we resolve the conflicting standards of review presented by the
parties in their opening briefs. Relying on In re L.S., 2009 MT 83, ¶ 18, 349 Mont. 518,
204 P.3d 707, D.K.D. urges us to apply a de novo standard to the District Court’s legal
conclusions and statutory interpretations, and an abuse of discretion standard to the
court’s discretionary rulings, which include administration and evidentiary issues. Citing
In re S.C., 2000 MT 370, ¶ 8, 303 Mont. 444, 15 P.3d 861, the State urges us to apply the
clearly erroneous standard to the court’s findings of fact and the correctness standard to
its conclusions of law.
¶12 We conclude that D.K.D.’s reliance on the standard of review as set forth in ¶ 18
of In re L.S. is inappropriate. While the In re L.S. Court did recite the standard of review
endorsed by D.K.D., that Court actually applied the conventional clearly erroneous and
correctness standards of review in its analysis at ¶ 24. Moreover, the case the In re L.S.
Court relies on, In re Mental Health of E.P.B., 2007 MT 224, ¶ 5, 339 Mont. 107, 168
P.3d 662, also correctly applies the clearly erroneous and correctness standards. Further,
we have consistently applied the clearly erroneous and correctness standards in civil
commitment cases. See e.g. In re Mental Health of L.K.-S., 2011 MT 21, ¶ 14, 359 Mont.
191, ___ P.3d ___; In re T.P., 2008 MT 266, ¶ 10, 345 Mont. 152, 190 P.3d 313; In re
Mental Health of E.P.B., ¶ 5; In re G.M., 2007 MT 100, ¶ 12, 337 Mont. 116, 157 P.3d
687; In re A.K., 2006 MT 166, ¶ 9, 332 Mont. 511, 139 P.3d 849; In the Matter of T.S.D.,
2005 MT 35, ¶ 13, 326 Mont. 82, 107 P.3d 481; In re Mental Health of C.R.C., 2004 MT
389, ¶ 11, 325 Mont. 133, 104 P.3d 1065; In re Mental Health of S.C., ¶ 8; In re Mental
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Health of L.C.B., 253 Mont. 1, 5, 830 P.2d 1299, 1302 (1992); In re G.S., 215 Mont. 384,
390, 698 P.2d 406, 410 (1985). Therefore, we reaffirm that in a civil commitment case
we determine whether a district court’s findings were clearly erroneous and whether its
conclusions of law were correct.
DISCUSSION
¶13 Issue: Whether the District Court committed error, much less plain error, when in
its order of commitment, it authorized MDC staff to administer medication to
D.K.D. on an involuntary basis pursuant to MDC policy.
¶14 As a preliminary matter, we briefly address whether this case is moot in light of
the fact that the court’s commitment order, by its terms, expired on March 16, 2011.
While not an issue raised by either party, “courts have an independent obligation to
determine whether jurisdiction exists and, thus, whether constitutional justiciability
requirements . . . have been met.” Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd.,
2010 MT 26, ¶ 11, 355 Mont. 142, 226 P.3d 567 (internal citations omitted). In line with
our precedent in involuntary commitment cases, the duration of which is often too short
to allow issues to be fully litigated prior to respondent’s release from the institution, we
conclude that this issue is not mooted by the fact that the District Court’s order expired
on March 16, 2011, because it falls under the “capable of repetition, yet evading review”
exception to the mootness doctrine. See e.g. In re D.M.S., 2009 MT 41, ¶ 10, 349 Mont.
257, 203 P.3d 776; In re Mental Health of D.V., 2007 MT 351, ¶¶ 30-32, 340 Mont. 319,
174 P.3d 503 (internal citations omitted); In re N.B., 190 Mont. 319, 322-23, 620 P.2d
1228, 1231 (1980).
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¶15 D.K.D. argues for the first time on appeal that the District Court erred when it
authorized MDC staff and treating professionals to administer medication to him on an
involuntary basis in accordance with MDC’s policy. D.K.D. argues the District Court’s
order places his liberty in jeopardy and our failure to review the issue places the judicial
process and its integrity at stake. D.K.D. urges us to review his claims under the
common law plain error doctrine and strike the portion of the District Court’s order of
commitment authorizing MDC to involuntarily administer medication to D.K.D. pursuant
to MDC’s policy.
¶16 D.K.D. was represented by counsel at the commitment hearing, and D.K.D. did
not object to this portion of the order in the District Court. Generally, we do not review
issues raised for the first time on appeal. In re A.N.W., 2006 MT 42, ¶ 41, 331 Mont.
208, 130 P.3d 619. Additionally, we invoke the common law plain error doctrine
“sparingly and only in those limited situations where failure to review the alleged error
may result in a manifest miscarriage of justice or compromise the integrity of the judicial
process.” In re Mental Health of A.S.F., 2008 MT 450, ¶ 5, 340 Mont. 45, 199 P.3d 808
(internal citations omitted); see also Emmerson v. Walker, 2010 MT 167, ¶ 28, 357 Mont.
166, 236 P.3d 598 (“The doctrine is invoked ‘sparingly’ in criminal cases and ‘only on
rare occasion’ in civil cases.”) (internal citations omitted). We have recently held that, to
apply the common law plain error doctrine, the “error must be plain” and we must be
“firmly convinced” that an aspect of the proceeding, if not addressed, would result in one
of the aforementioned consequences. State v. Taylor, 2010 MT 94, ¶ 17, 356 Mont. 167,
231 P.3d 79.
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¶17 We conclude that there was no plain error here, and that the record does not
establish that failure to review this case would result in either a miscarriage of justice or a
compromise of judicial integrity. We so conclude because the portion of the District
Court’s order authorizing MDC staff and treating professionals to involuntarily
administer medication pursuant to MDC policy, was mere surplusage. Generally, when
we determine that plain error review is not warranted, our analysis of the issues ends
there. However, given the uniqueness of the situation before us and that it is capable of
repetition, we deem it important to expand on our rationale.
¶18 As noted, D.K.D. challenges only the portion of the District Court’s order that
authorizes MDC staff and treating professionals to involuntarily administer medication to
him pursuant to MDC’s policy. On appeal, D.K.D. mischaracterizes the language of the
order, arguing that the District Court does not have the authority to “order involuntary
medication” for D.K.D. The District Court did not do so. Under the plain language of
the court’s order, MDC staff and treating professionals are merely authorized to
administer medication involuntarily pursuant to their policy.
¶19 Title 53, chapter 20, MCA, governs the involuntary commitment of
developmentally disabled persons. Unlike Title 53, chapter 21, MCA, which addresses
the commitment of mentally ill persons and specifically permits a court to direct the
administration of involuntary medication, see § 53-21-127(6), MCA, chapter 20 contains
no such provision. In an involuntary commitment hearing under chapter 20, the only
decision relegated to the district court pursuant to § 53-20-125(7), MCA, is whether to
commit the person to a residential or community-based facility, or dismiss the petition. A
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district court has no statutory authority to order a particular course of treatment for these
committed persons—this is the duty and responsibility of MDC staff and treating
professionals. See § 53-20-145, MCA (requiring medication to be administered only
upon the written order of a physician, and assigning responsibility for medication to the
attending physician and the individual treatment planning team); Admin. R. M.
37.34.1101 to 37.34.1114 (2011).
¶20 The language of the District Court’s order authorizing MDC to undertake the
administration of involuntary medication pursuant to policy does no more than authorize
MDC to do what its policies in place permit it to do. The court’s language is therefore
gratuitous. Should D.K.D. take issue with an MDC policy regarding administration of
involuntary medication or any other MDC protocol, that concern must be raised with
MDC or the Department of Public Health and Human Services, and failing resolution, in
a court action specifically challenging such policy. The medication administration
policies of MDC are beyond the purview of the District Court’s statutory authority and its
order of commitment.
¶21 In light of the fact that the District Court had no authority to, and did not in fact,
order that D.K.D. be involuntarily medicated, we decline to exercise plain error review
here. However, we urge district courts to be precise in the language of their orders and to
refrain from inserting gratuitous language or observations that may be construed by the
parties as mandatory obligations.
CONCLUSION
¶22 For the foregoing reasons, we decline to invoke the plain error doctrine.
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¶23 Affirmed.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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