February 15 2011
DA 10-0299
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 21
IN THE MATTER OF THE MENTAL HEALTH OF:
L.K.-S.,
Respondent and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Teton, Cause No. DI 07-002
Honorable Laurie McKinnon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robin A. Meguire, Attorney at Law; Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
Attorney General; Helena, Montana
Joe Coble, Teton County Attorney; Choteau, Montana
Submitted on Briefs: January 26, 2011
Decided: February 15, 2011
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Respondent and Appellant L.K.-S. appeals from the Order of the Ninth Judicial
District Court, involuntarily committing her to the Montana State Hospital (MSH). The
sole issue on appeal is whether the District Court erred in committing L.K.-S. to MSH in
violation of her right to a jury trial.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 L.K.-S. is a resident of Choteau, Montana, who suffers from paranoid
schizophrenia. She has been involuntarily committed four times in the past, and many of
the people involved in this case have had previous experience with her in similar
proceedings.
¶3 On May 26, 2010, the State of Montana, through Teton County Attorney Joe
Coble (Coble), filed a petition pursuant to §§ 53-21-121 and 53-21-129, MCA, for
emergency detention of L.K.-S. and for her involuntary commitment to MSH. The
State’s petition set out over forty reported instances in which L.K.-S. acted in a manner
evidencing a mental disorder and imminent threat of injury to herself or others resulting
therefrom. The State’s petition argued that the listed events demonstrated a “continuing
escalation of events which create an emergency situation.” The events included L.K.-S.
trespassing onto property and yelling at residents, “barking” at children, causing
numerous disturbances at public places, failing to care for her own basic hygiene,
threatening to poison neighbors’ pets, speaking with and “sensing the presence” of
nonexistent persons, making U-turns on the highway and blocking both lanes of traffic,
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and drinking and driving. The incidents all occurred between May 17 and May 25, 2010,
after L.K.-S. allegedly stopped taking her prescribed medication.
¶4 Later that day, the District Court entered an order for emergency detention
pursuant to § 53-21-122(2), MCA. The court found probable cause for the petition and
that an emergency situation existed under § 53-21-129, MCA, “in that [L.K.-S.] presents
a threat of bodily injury or death to either herself or others.” The order directed that
L.K.-S. be brought in front of the court to be read her rights. The order also appointed
counsel through the Office of the Public Defender, appointed a statutory “friend” and
“professional person,” and instructed law enforcement to detain L.K.-S. at MSH pending
further hearing or order, following her initial appearance before the court.
¶5 Following entry of the order, Teton County Sheriff’s Deputies brought L.K.-S. to
the Cascade County Detention Center. Using the Vision Net system, the Hon. John L.
“Pete” Howard, Justice of the Peace for Teton County, informed L.K.-S. that the
proceeding was a detention hearing on the State’s petition, read aloud her rights under
§ 53-21-115, MCA, and notified L.K.-S. that she would be transported to MSH for
purposes of having a professional person examine her. L.K.-S. was generally
cooperative, but stated that she “object[ed] to this entire proceeding.” She also claimed
that the charges against her had been “trumped up” and refused to provide a corrected
address after stating that the address on the petition was not her current address. She was
then transported to MSH by law enforcement.
¶6 On the following day, May 27, L.K.-S. was examined at MSH by Richard Wagner
(Wagner), her appointed professional person, in the presence of her appointed friend,
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Dr. Martin Krautter (Krautter), and public defender, Bill Hunt (Hunt). Wagner concluded
that L.K.-S. had quit taking her medications for schizophrenia and recommended that she
be committed to “prevent further deterioration of her mental status.”
¶7 On June 1, a hearing was held on the State’s petition in the Ninth Judicial District
Court before the Hon. Laurie McKinnon. Hunt and Coble were present in the courtroom.
L.K.-S., Wagner, and Krautter were present via Vision Net from MSH. L.K.-S.
immediately interrupted the proceedings and stated, “I am simply here to request an
actual legal trial, in person, judge—excuse me, an in person jury trial.” The court
continued its attempt to discuss initial matters in the case with Hunt, but L.K.-S. again
interjected, repeating her desire for a jury trial and objecting to numerous elements of the
proceedings. The court admonished L.K.-S. to stop interrupting, stating “[i]f you keep
interrupting me I’m going to have the video . . . muted so that you can’t interrupt.”
L.K.-S. was undeterred. She again interrupted and stated that there was “no point in this
proceeding,” and eventually left the room.
¶8 With L.K.-S. not present, Coble said “[a]lright, let’s make a record.” He noted
that L.K.-S. had requested a jury trial and stated that under § 53-21-119(1), MCA, the
right can be waived if a proper record is made. At this point, L.K.-S. re-entered the room
and continued being disruptive. The court warned L.K.-S. to stop interrupting and
subsequently muted the system when L.K.-S. refused. Hunt asked Coble to continue,
stating that Coble “was right in the middle of making a record on the waiver of a jury
trial.” Coble then outlined the requirements of § 53-21-119, MCA, relating to a waiver of
the right to a jury trial and the right to be present during the hearing, explaining that the
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statute “requires the concurrence of the Friend of the Respondent [Krautter] and the
concurrence of the Professional Person [Wagner] . . . . [I]f Mr. Krautter and Mr. Wagner
concur, the Court can find a waiver of the request for a jury trial.”
¶9 Coble also stated that if L.K.-S. were to leave the room again, in order to validly
waive her right to be present, the court would need to make a finding that her continued
presence would adversely affect her mental condition and that an alternative location
would not prevent the adverse effect. The court then asked Hunt for his position on the
waiver of the jury trial. Hunt replied that he believed a jury trial “would be detrimental to
[L.K.-S.’s] mental health and not result in any different outcome” and stated that he
anticipated asking for a waiver of her presence in the hearing because it would be
detrimental. The court inquired, consistent with § 53-21-119, MCA, whether Hunt
believed that L.K.-S. was capable of making an “intentional and knowing decision with
respect to indication of those jury trial rights.” Hunt responded that based on his
experience and his review of the reports, it was his belief that she was not capable of
making such a decision.
¶10 The court then attempted to ask Wagner the same question. The transcript reveals
a chaotic scene. In order to ascertain whether Wagner and Krautter concurred with the
waiver of a jury trial, the court evidently took the Vision Net system off of the “mute”
setting. L.K.-S.’s presence in the room, and continued interruptions, made it extremely
difficult for any communication to occur between the court and those at MSH. The court
asked Wagner three times whether he had “hear[d] the question,” ostensibly inquiring if
Wagner concurred with the question just posed to Hunt as to L.K.-S.’s capacity to make
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an intentional decision regarding her jury trial rights. It is clear that Wagner did not.
Krautter attempted to provide assistance, stating, “Rick, the judge is asking you if you
heard that?” Wagner responded, “Yeah, I’m sorry, I can’t hear you.” At this point, Hunt
requested that L.K.-S. be removed again, so that the record could be made without further
interruption. The court attempted to ask Krautter for his consent to remove L.K.-S. from
the room, but difficulties in communication persisted. Krautter could only respond,
“Your Honor, I can’t hear anything . . . ” until L.K.-S. was removed from the room.
¶11 After L.K.-S. was removed, the court asked Krautter for his consent to waive
L.K.-S.’s presence during the hearing, as mandated by § 53-21-119(2), MCA. He
consented, as did Wagner. The hearing then progressed, with the State calling witnesses
to testify to instances demonstrating L.K.-S.’s unstable mental condition. No further
mention was made of L.K.-S.’s request for a jury trial. L.K.-S. did not return to the
hearing.
¶12 On the day following the hearing, June 2, 2010, the court issued the Order for
Confinement that is the subject of this appeal. The order contained the following Finding
of Fact #3: “[u]pon the representation of Respondent’s counsel, Respondent’s Friend, and
the concurrence of Professional Person Rick Wagner, the Court determined that the
Respondent was not capable of making an intentional and knowing decision regarding
her rights. Respondent’s counsel thereby waived Respondent’s right to a jury trial
pursuant to 53-21-119(1), MCA.” The order committed L.K.-S. to MSH for a period of
90 days. A Notice of Appeal was timely filed with this Court.
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¶13 On appeal, L.K.-S. claims the District Court erred by not making a sufficient
record to support its findings as to the waiver of her right to a jury trial. She asserts that
the statutory requirements of § 53-21-119(1), MCA, were not followed by the court and
that, as a result, the order committing her to MSH must be vacated. In addition to the
claimed statutory violations, L.K.-S. also argues that her right to a jury trial under the
Montana Constitution was violated. She does not challenge the merits of the underlying
commitment proceedings or the waiver of her right to be physically present at the
hearing.
STANDARD OF REVIEW
¶14 We review a district court’s civil commitment order to determine whether the
court’s findings of fact are clearly erroneous and its conclusions of law are correct. In the
Matter of T.S.D., 2005 MT 35, ¶ 13, 326 Mont. 82, 107 P.3d 481. A finding of fact is
clearly erroneous if it is not supported by substantial evidence, if the district court
misapprehended the effect of the evidence or if, after a review of the entire record, we are
left with the definite and firm conviction that a mistake has been made. Id.
DISCUSSION
¶15 This case requires a close reading of the record in light of the statutory scheme
governing involuntary commitment. We have emphasized the necessity of strict
adherence to this statutory scheme, given the utmost importance of the rights at stake. In
the Matter of the Mental Health of C.R.C., 2004 MT 389, ¶ 16, 325 Mont. 133, 104 P.3d
1065. In recognition of the “calamitous effect of a commitment, including loss of liberty
and damage to a person’s reputation,” we have described the “procedural safeguards” of
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these statutes as “of critical importance.” In the Matter of the Mental Health of T.J.D.,
2002 MT 24, ¶ 20, 308 Mont. 222, 41 P.3d 323 (internal citation and quotation marks
omitted). We have further emphasized the duty of trial courts to “safeguard the due
process rights of the individual involved at every stage of the proceeding.” In the Matter
of the Mental Health of L.C.B., 253 Mont. 1, 7, 830 P.2d 1299, 1303 (1992).
¶16 At issue is whether L.K.-S.’s right to a jury trial was properly waived under § 53-
21-119, MCA. Section 53-21-125, MCA, provides all persons subject to involuntary
commitment with the right to a jury trial. Section 53-21-119, MCA, governs how this
right may be legally waived. It provides:
53-21-119. Waiver of rights. (1) A person may waive the person’s
rights, or if the person is not capable of making an intentional and knowing
decision, these rights may be waived by the person’s counsel and friend of
respondent acting together if a record is made of the reasons for the waiver.
The right to counsel may not be waived. The right to treatment provided for
in this part may not be waived.
(2) The right of the respondent to be physically present at a hearing
may also be waived by the respondent’s attorney and the friend of
respondent with the concurrence of the professional person and the judge
upon a finding supported by facts that:
(a) the presence of the respondent at the hearing would be likely to
seriously adversely affect the respondent’s mental condition; and
(b) an alternative location for the hearing in surroundings familiar to
the respondent would not prevent the adverse effects on the respondent’s
mental condition.
¶17 We have recently had occasion to examine this statute in a case which
coincidentally involved the same respondent as the present case. In the Matter of the
Mental Health of L.K., 2009 MT 366, 353 Mont. 246, 219 P.3d 1263. In that case, we
reviewed a waiver of the respondent’s right to be physically present at the hearing. The
waiver was placed at issue when the respondent walked out of the hearing. The court
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made clear, on the record, that she was free to return and participate at any time. We
reversed the court’s commitment order, however, after concluding that the record
insufficiently demonstrated compliance with the required procedural hurdles.
¶18 In In the Matter of L.K., we noted that under the plain language of § 53-21-119(1),
MCA, if L.K. were not capable of “making an intentional and knowing decision,” then
her rights could be waived by her attorney and appointed friend, acting together, if a
record were made of the reasons for the waiver. Id. at ¶ 17. Section 53-21-119(2), MCA,
we observed, imposes additional requirements before the right to presence at the hearing
may be waived: the concurrence of a professional person, and two necessary factual
findings.
¶19 Proceeding element by element, we concluded that the record did not support the
court’s order. We first determined that the requirements under § 53-21-119(1), MCA,
were not met, as there was “no record of a waiver made by L.K.’s attorney and friend
acting together, and no record of any reasons for such a waiver . . . [t]herefore, there was
an insufficient record of a waiver under § 53-21-119(1), MCA, of L.K.’s right to be
present at the hearing.” Id. at ¶¶ 17-18. Similarly, we determined that the court erred in
conducting the hearing outside L.K.’s presence for failure to comply with the
requirements of § 53-21-119(2), MCA. “There was no record that the appointed friend or
professional person concurred with a waiver of L.K.’s right to be present, and there was
no record of findings supported by facts as required by § 53-21-119(2)(a) and (b), MCA.”
Id. at ¶ 19.
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¶20 In the Matter of L.K. and previous cases dealing with Montana’s involuntary
commitment statutes set a strict standard for determining waiver of the rights preserved
by statute. Without factual findings necessary to each procedural requirement, supported
by evidence in the record, the commitment order cannot stand.
¶21 As the District Court noted during the hearing, the requirements of §§ 53-21-
119(1) and 53-21-119(2), MCA, are not co-extensive; the factual predicate for each
subsection differs and the concurrence of a professional person is only required to waive
the right to be present during a hearing under subsection (2). Under subsection (1), in
order for the right to a jury trial to be waived, the record must demonstrate that both
L.K.-S.’s attorney and friend concurred with the waiver, and together made a record of
the reasons for this waiver independent of their waiver of her right to be present during
the hearing.
¶22 After a thorough review of the record, we are compelled to set aside the
commitment order here for failure to comply with these requirements. The District
Court’s Finding of Fact #3 is clearly erroneous as it is not supported by evidence on the
record, and as a result, the legal conclusion that the right to a jury trial was validly
waived is not correct. L.K.-S.’s attorney Hunt, who was physically present in the
courtroom, represented to the court that she was not capable of making an intentional and
knowing decision on the matter of a jury trial, and competently set forth his conclusion
that waiver of a jury trial was in her best interests. The record is barren, however, of the
necessary concurrence of L.K.-S.’s friend Krautter in the waiver of a jury trial. When
asked directly for his reply to Hunt’s conclusions, Krautter’s response was, “Your Honor,
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I can’t hear anything.” No additional testimony from Krautter is present on the jury trial
waiver.
¶23 It is overwhelmingly evident from a review of the transcript that the District Court,
the State’s attorney, and counsel for L.K.-S. believed they had completed the necessary
record. L.K.-S.’s own disruptive activities are the primary reason why the record was not
developed in compliance with the statutory requirements. The Vision Net system was
placed on mute to avoid further disruption, but the commotion evidently resulted in the
judge and counsel being inaudible to Krautter and Wagner. After several further
disruptions, the parties seemingly then lost their place in making the record for waiver of
the right to a jury trial, as their attention turned to making the necessary record for waiver
of the right to be physically present during the hearing.
¶24 We cannot know what, if anything, this transcript unintentionally omitted. The
court reporter had an unenviable task transcribing a chaotic scene. We are constrained,
however, to consider only the record before us, and we are not at liberty to make
assumptions to fill in the blanks. Where L.K.-S. made adamantly clear her demand for a
jury, the record must be equally clear that there was a valid waiver.
¶25 The State urges us to apply the doctrine of implied findings to the case at bar. The
doctrine provides that where findings of fact are “general in terms, any findings not
specifically made, but necessary to the [determination], are deemed to have been implied,
if supported by the evidence.” State v. Wooster, 2001 MT 4, ¶ 18, 304 Mont. 56, 16 P.3d
409 (quoting Interstate Brands Corp. v. Cannon, 218 Mont. 380, 384, 708 P.2d 573, 576
(1985)). Here, however, the court made the specific finding required by statute, but it
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was not supported by any direct evidence in the record. The doctrine is thus facially
inapplicable. A waiver of rights should not be presumed. L.K., ¶ 19 (citing State v.
McCarthy, 2004 MT 312, ¶ 32, 324 Mont. 1, 101 P.3d 288).
¶26 L.K.-S.’s confinement thus violated her right to a jury trial, as the strict
requirements of § 53-21-119(1), MCA, were not met. We need not consider L.K.-S.’s
argument that her constitutional right to a jury trial also was violated.
¶27 Accordingly, the order involuntarily committing L.K.-S. to MSH is reversed.
/S/ BETH BAKER
We concur:
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE
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