Matter of Shennum

No. 83-305

I N THE SUPFSNE COURT O THE STATE O F M N A A
F OTN

1984

I N THE MATTER OF
ALAN RAY SHENWUM, R e s p o n d e n t .

APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f X i s s o u l a ,
The R o n o r a b l e J a c k L . G r e e n , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

P a t e r s o n , M a r s i l l o , Tornabene & S c h u y l e r ; C h a r l e s W.
S c h u y l e r and L a r r y E l i s o n a r g u e d , M i s s o u l a , Montana

For Respondent :

Hon. Mike G r e e l y , A'ctorney G e n e r a l , H e l e n a , Montana
R o b e r t P.W. S m i t h a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
R o b e r t L . Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Montana: R o b e r t S l o m s k i a r g u e d , Deputy County A t t o r n e y ,
M i s s o u l a , Montana

Submitted: J a n u a r y 2 3 , 1984

Decided: J u n e 19, 1 9 8 4

Filed: ;I..J~ 9
I 1984

Clerk
Mr. Justice John C. Sheehv deli-vered the Opinion of the
Court.

Alan Ray Shennum appeals from an order of the District
Court, Fourth Judicial District, Missoula County, committing
and confining him to Warm Springs State Hospital for a period
of three months.
We determine in this case that the state failed to
follow the statutory safeguards imposed upon the state when
it sought the commitment of the respondent on the charge of
being seriously mentally ill, and that such failure mandates
reversal in this case. We set forth for any future
proceedings the burden of proof imposed upon the state in
such cases, the number of jurors necessary to reach a
verdict, and answer respondent's contentions respecting the
instructions given to the jury in this case.
On the evening of April 25, 1983, Shennum arrived early
for a scheduled meeting of the Missoula City Council and
seated himself next to Neil R. Smith in the public section of
the council Is chambers. Smith noticed that Shennum was
wearing over his shirt an unconcealed shoulder holster
attached to his body by ropes, and that in the shoulder
holster he ca.rried a .45 caliber semiautomatic pistol.
Shennum began talking to Smith saying that Shennum was in the
process of putting a stop to women voting and that women
should not be allowed to hold public office. He was going to
accompl-ish this through legislation. When Shennum asked
Smith how many women were on the city council, Smith decided
that he had better report the presence of Shennum in the
council chambers to the officials. He feigned an excuse for
1ea.ving the city council chambers and. reported the situation
to a woman at the City Police Office in the same building.
Smith then left the building because he anticipated trouble.
The Missoula City Police Officers surrounded the council
chambers to keep an eye on Shennum. In the meantime, one of
the police officers informed arriving members of the city
council. The city council held an emergency caucus in
another room and passed an emergency ordinance to make it
unlawful, except for law officers, to possess a gun in a city
building. Because of the delay of the council in getting to
the meeting at the scheduled time, people began leaving the
council chambers, including Shennum. When he got to the
council chamher door, Shennum was taken into custody by two
officers who immediately disarmed him of his pistol. Police
officers determined it was fully loaded and cocked with a
live round in the chamber and with a fully loaded clip of
seven rounds. In addition Shennum was carrying a fully
loaded extra clip of .45 caliber ammunition in his shirt
pocket.
Shennum was then taken by the officers to an interview
room in the police department where he was questioned by the
officers for thirty to forty minutes. The officers attempted
to obtain some identification from him and to ascertain his
purpose in being in the city council chambers with a loaded
gun. Shennum had no identification on his person other than
a printed business card which gave his address but not his
name and which stated that he was a consultant to government
and business. Shennum would repl-y only that he worked for
all government agencies. The police officers had difficulty
getting a positive identification from Shennum until they
went to his car which was parked near the city council
building. From the car, Shennum produced his driver's
license and other material that gave the police a positive
identification.
Shennum was not placed under arrest or charged with an
offense although the police retained his weapon. Shennum
requested the return of his weapon, but the police officers
told him that it would not be returned. Shennum indicated
that he might get another gun anyway.
Stripped of his gun, Shennum either presented no further
threat of danger to himself or to others in the community or
the police officers were not doing their duty, because he was
released into the night without any further precaution. It
seems safe to assume that the police officers did not in fact
ignore their duty, but saw no further threat in Shennum
without his gun. No further action had been taken by the
police when on the next morning, Shennum again appeared at
police headquarters, requestinq that his gun be returned to
him.
The record is absolutely bare of what happened on the
morning of April 26, when Shennum appeared to retrieve his
gun. No person testified as to what occurred at the time.
It is clear however, that when he came in the morning,
Shennum was deta-ined and a request was made through the
county attorney's office for Shennum's mental examination by
Dr. Charles E. Lear, a Missoula psychiatrist. The doctor
came to the jail in the morning of April 26, and interviewed
Shennum for 35 to 40 minutes. Later that day Shennum was
transferred to the mental health unit of St. Patrick's
Hospital in Missoul-a, Montana and Dr. Lear conducted a second
interview of Shennum at the hospital on the following
morning, April 27. On that date, Dr. Lear submitted a report
on a prepared form. He placed a "X" on appropriate places on
the form to indicate that Shennum suffered from a mental
disorder which affected his cognitive or volitional
functions, and that the least restrictive situation blhich
would provide him adequate care and supervision was
commitment to Warm Springs State Kospital.
On April 2 7 , the same day, the county attorney filed a
petition alleging serious mental illness of Shennum and
asking for his commitment to a mental health facility for not
to exceed three months. On that day the court also signed a
detention order requiring Shennum to be detained at the
hospital until further order of the court. The minutes of
the court reflect that Shennum was brought before the
District Court with his court-appointed counsel and his
court-appointed friend, and was there advised of his rights
by the court. The court at that same time appointed an
attorney to represent Shennum, a friend, Donald Louden, to
protect his interests, and Michael W. Marks, a professional
person of Shennum's choosing to examine him and testify at
the hearing before the court. The court set May 4, 1983 for
a hearing on the petition.
Shennum's counsel filed a request for a jury trial and
the matter came on for trial before a jury on May 10, 1983.
The jury returned a verdict on May 11, 1983, that Shennum was
seriously mentally ill. After a further hearing, the order
of commitment was signed by the district judge on May 12,
1983.
We will refer to other facts as we proceed in discussing
the issues.
I.

The statutes for the commitment of a seriously mentally
ill person do not present a model of intelligibility or
clarity. What is clear from them, however, is the concern of
the legislature that procedural safeguards be placed around
the power of the state to commit a person for serious mental
illness.
That concern may be found in the definition of
"seriously mentally ill-" itself. It is defined as "a mental
disorder which has resulted in self-inflicted injury or
iniury to others or the imminent threat thereof or which has
deprived the person afflicted of the ability to protect his
life or health." Section 53-21-102 (14), MCA. The same
statute defines injury as physical injury. It also provides
that no person may be involuntarily committed to a mental
health facilility - detained for evaluation
or because he is
suffering from a mental disorder unless the condition causes
him to be seriously mentally ill within the meaning of the
definition. Section 53-21-102(14), MCA.
The state claims that it began proceedings against
Shennum in this case under the emergency provisions of
section 53-21-129, MCA. The pertinent portion of that
statute provides:

"When an emergency situation exists, a peace
officer may take any person who appears to be
seriously mentally ill and as a result of serious
mental illmess to be a danger to others or to
himself into custody only for sufficient time to
contact a professional person for emergency
-
evaluation. If possible, a professional person
should - called prior to t%kinq - person into
be the
custody. " (Emphasis addez )

As we have said earlier, the record is bare of what the
situation was at the police station on the morning that
Shennum was detained, and Dr. Lear called to evaluate him.
We know from the record only, and that from Dr. Lear, that he
had been called to come to the city jail to examine Shennum.
In his report and in his testimony at the hearing, Dr. Lear
reports no physical in-jury or threat of physical injury at
the county jail in the morning, reported to him or jn his
.
presence. In fact he relied in his report and in his
testimony as proof that Shennum represented an imminent
threat of injury, on the reports that Shennum had come to the
city council the night before with a loaded gun, and that
some days earlier he had come to the county courthouse and
had filed his will. Those are the facts upon which Dr. Lear
based his evaluation that Shennum presented an imminent
threat of physical injury. The record shows, however, that
from the time the police took the qun from Shennum, he made
no threat of any kind against himself or anyone else. During
the period of time that he was in the hospital, from April 27
and throughout his trial, he was kept in a room in the
hospital with an open door, free to wander out into an open
area nearby. The nurses had been advised that if he
attempted to break out, that he should be allowed to d o so
.
and they should simply dial 911 to get emergency help.
Nothing of that sort occurred. There is no showing in the
record therefore of any circumstances existing on the morning
of April 26, 1983 involving Shennum which would call to play
the emergency provisions of section 53-21-129, MCA. It is
also clear from the record that at no time prior to his
examination by Dr. Lear, or until such time as he appeared in
court on April 27, that Shennum was advised of his
constitut-ionalrights. Entirely lacking from the record is a
finding by Dr. Lear on April 26, 1983, that an emergency
situation existed at the city jail. That was a requisite for
the further detention of Shennum in this case under the
emergency statute. Section 53-21-129(2), MCA.
 If no emergency existed on the morning of April 26, and
we have no evidence that one did exist, then the procedure
adopted by the state in committing Shennum, however proper
the commitment may have been, deprived him of the procedural
safeguards that the legislature has set up in the statutes
when no emergency situation exists. For absent an emergency,
it was the duty of the county attorney to proceed in
accordance with sections 53-21-121 through 53-21-126, MCA, in
order to commit Shennum as a seriously mentally ill person.
Under 53-21-121, the county attorney, upon the written
request of any person, may file a petition setting forth the
information required in that section. Although the petition
filed by the county attorney in this case stated that the
request was made by Dr. Lear for the filing of the petition,
we find no written request in the record by Dr. Lear for
proceedings to be instituted. Apparently the county attorney
was relying on the form report of the medical examination
submitted by Dr. Lear which had been incorrectly obtained
from Shennum under the purported emergency situation.
After the petition was filed, it was the duty of the
district judge to consider the petition and to find probable
cause therefrom. Section 53-21-122, MCA. We have no doubt
that probable cause was set forth in the petition, but there
was no finding in the record of the district judge to that
effect. There are minutes of the court which indicate that
"the respondent was advised of his rights by the Court" on
April 27, 1983. The statute requires that Shennum be advised
of his constitutional rights, his rights under this "part"
(apparently meaning his procedural rights under 53-21-115,
MCA) and "the substantive effect of the petition." Section
53-21-122(2), MCA. Again the record is bare that Shennum was
so advised.
Section 53-21-124, MCA, provides that the court may not
order the detention of the respondent pending the hearing
unless "requested by the county attorney and upon the
existence of probable cause for detention." Here Shennum's
counsel did not request a detention hearing, but that should
be one of the rights which the respondent should be informed
of at the time of his first appearance before the court.
The importance of these procedural steps in a commitment
case cannot be exaggerated. These safeguards were inserted
by the legislature because of the calamitous effect of a
commitment; a deprivation of a person's liberty for up to
three months (a period which may be extended) and the
inevitable damage to a person's reputation. The California
Supreme Court nailed it down when it said: "One has only to
imagine the horror experienced by a competent person falsely
committed as mentally disturbed in order to appreciate that
freedom is openly on trial at a civil commitment proceeding."
Estate of Roulet (Cal. 1979), 152 Cal.Rptr. 425, 590 P.2d 1,
3.
It is apparent from the commitment statutes that the
intention of the legislature is that a person charged will be
advised of his constitutional rights and other rights before
an order for his mental evaluation by a professional person
is made. In this case, when Shennum was advised on April 27,
1983, by the District Court of his rights, it was already too
late. His mental evaluation by a doctor had occurred on the
day before.
We respect the intention of the legislature in providing
protective safeguards in commitment cases. Because those
safeguards were not observed by the state in the handling of
Shennum's commitment, we reverse the commitment here.
Nothing in this opinion shall be held to prevent the
state from proceeding properly to determine whether Shennum
is seriously mentally ill after remittitur. Although Shennum
in this case broke no law in carrying openly a loaded pistol
into the council chambers, that does not appear to be normal
behavior. (We remember the story of the masked bank robber
who pointed a gun at the bank teller and said, "Give me your
money and act normal." The bank teller, who had taken
Psychology 101 said, "Define normal.") Whether in any future
proceedings similiar actions constitute him an imminent
threat to himself or to others, we leave to 2 trier of fact.
11.

There are issues raised in this case which we must
discuss since there is a possibility of some future
commitment proceedings.
Counsel for Shennum contends that since a commitment for
being seriously mentally ill has the effect of depriving the
committed person of his liberty and damage to his reputation,
the result is as serious as though criminal proceedings were
brought against him. Therefore, counsel contends, the burden
of proof on the state to commit Shennum should have been
proof beyond a reasonable doubt.
By the same kind of reasoning he contends that the
verdict of the jury should be unanimous instead of by
two-thirds of the jurors.
Shennum cites the rule in California which is as he
contends, but California has no controlling statute. We are
controlled by the provisions of sections 53-21-126, MCA,
which sets out the standard of proof in any hearing and which
also provides on trial by jury, two-thirds must concur in the
finding that the respondent is seriously mentally ill. The
statute further provides that the trial shall be governed by
the Montana Rules of Civil Procedure.
The standard of proof required of the state in a
commitment hearing is this:
"(2) 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." Section 53-21-127 (2), MCA.
Counsel for Shennum also contends that the "trifurcated"
legal standard of persuasion set forth in the foregoing
statute is impossible to apply and confusing to a jury. We
met that contention, however, in Matter of N.B. (~ont.1980),
620 P.2d 1228, 1231, 37 St.Rep. 2031, 2034. There we set
forth, and iterate here, that the statute's use of
"reasonable medical certainty" means only a standard for the
medical witnesses testifying in commitment proceedings. We
stated that proof of mental disorders to a reasonable medical
certainty is sufficient if with the other evidence in the
case, the trier of facts is led to the conclusion that the
serious mental illness exists by clear and convincing proof.
Proof of physical facts, of course, must be proven beyond a
reasonable doubt under the statute.
In Addington v. Texas (1979), 441 U.S. 418, 99 S.Ct,
1804, 60 L.Ed.2d 323, the United States Supreme Court stated
that "clear and convincing proof" is somewhere between a
preponderance of the evidence and proof beyond a reasonable
doubt. No further refinement of the term is necessary, in
our opinion. We see no d-ifficulty in advising a jury that it
must find by clear and convincing proof that the person
charged is suffering from serious mental illness. The words
"clear and convincing" import fairly well defined concepts
which a person otherwise capable of sitting on a jury should
have no difficulty in grasping. Addington permits that
degree of proof in commitment proceedings.
Since the statute permits commitment proceedings to be
governed by the Montana Rul-es of Civil Procedure, the
provisions of the statutes, and of the Rules, for a
two-thirds jury verdict are a sufficient indication of
legislative intent and we will not require an increased
number of jurors for a commitment verdict.

There is no need, as counsel for Shennum contends, that
the jury be instructed that a person should be advised of his
constitutional rights before he is involuntarily detained or
examined. Procedural matters are not matters for a jury to
determine. Nor is it necessary for the District Court to
instruct the jury on all the constitutiona.l protections set
out in the Montana Constitution or in the federal
constitution. The court's duty with respect to instructions
is only to state the law as applicable to the case and not to
give abstract instructions.
Shennum also contends that the District Court should
have granted his motion in limine to quash any statements
made by Shennum to the police or to the doctor before the
petition for his commitment was filed. We see no prejudice
in the statements that he made to the police officers on the
night of the gun incident, except of course that the
statements were erratic and wandering. These are not
incriminating per se and there is no reason why such
statements could not be given to the jury. In any future
proceedings against Shennum he undoubtedly will have to be
re-examined so his statements to Dr. Lear are moot as far as
a future proceeding is concerned.
IV.
After the appeal was filed. in this case, it appears from
briefs that a petition was filed in Powell County for further
detention of Shennum, and that proceedings there have been
stayed pending this appeal. Because we reverse his original
commitment from Missoula County, his further detention under
section 5 3 - 2 1 - 1 2 8 , MCA, is improper.
We therefore reverse the commitment of Alan Ray Shennum
through the order of the District Court in Missoula County,
and if he is still detained on remittitur we direct the
county attorney of Missoula County to proceed with all
deliberate speed to procure the release of respondent Shennum
insofar as his further detention depends on the original
commitment from Missoula County. Nothing herein bars further
proceedings properly followed in this matter.
/--',
k. \ L k ~ ,,
-< p, g/\ic~:i
Justice

We Concur:
Justices
Mr. Justice Fra.nk B. Morrison, Jr. respectfully dissents as
follows :
The majority opinion is a mystery. First, reliance is
placed upon Estate of Roulet (Ca.1. 1979), 152 Cal.Rptr. 425,
590 P.2d 1, wherein the California Supreme Court eloquently

stated that freedom was openly on trial in a civil commitment
proceeding. The California Court held that, where liberty is
at stake, as in a civil commitment proceeding, constitutional
rights attach affording right to a unanimous jury verdict and
"proof beyond a reasonable doubt."
In rejecting Shennum's contention that he is entitled to
a unanimous jury verdict and a requirement that the State
prove the case beyond a reasonable doubt, the majority then
distinguishes the Roulet case. The majority states:
"Shennum cites the rule in California which is as
he contends, but California has no controlling
statute. We are controlled by the provisions of
sections 53-21-126, MCA, which sets out the
standard of proof in any hearing and which also
provides on trial by jury, two-thirds must concur
in the finding that the respondent is seriously
mentally ill. The statute further provides that
the trial shall be governed by the Montana Rules of
Civil Procedure."
First of all, the majority is wrong. The California
case did involve the constitutionality of California statutes
which allowed the taking of liberty in a "civil commitment"
proceeding without benefit of due process guarantees afforded
criminal suspects. Secondly, elementary constitutional law
teaches that statutes in conflict with the Constitution
cannot stand. Therefore, if constitutional rights attach to
one threatened with loss of liberty in a "civil commitment"
proceeding, then statutes in conflict with those rights must
necessarily fall.
The majority further confuses the issue by saying:
"It is apparent from the commitment statutes that
the intention of the Legislature is that a person
charged will be advised of his Constitutional
rights and other rights before an order for his
 mental evaluation by a professional person is
made. " (emphasis added)
Again, it seems elemental that if constitutional rights
have attached they must be fully accorded, the statutes
notwithstanding. The majority seems to concede that Shennum
has constitutional rights where his liberty is threatened and
yet seems to say those rights are defined in the statutes.
Nonsense.
Shennum, facing a deprivation of liberty in a civil
commitment proceeding, should be entitled to the panoply of
constitutional rights afforded an accused. These include the
right to remain silent, the right to counsel, unanimous jury
verdict and requiring the State to prove the case beyond a
reasonable doubt.
The majority result is unclear. The case is unusual for
there is nothing to retry. Shennum is no longer
incarcerated. I would simply hold that what went before is a
nullity and the statutes which conflict with well established

I
Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.
 DISSENT OF MR. JUSTICE DANIEL J. SHEA

KO. 83-308
IN THE MATTER OF ALAN RAY SHENNUM

CLERK OF SUPPiEPdaE COURT
STATE OF fdbrlsZNTANA
Mr. Justice Daniel J. Shea, dissenting:

I agree with the dissent of Mr. Justice Franlc 3.

Morrison, and would require proof beyond a reasonable doubt
in order to commit a person to a mental health institution.
The Fourteenth Amendment to the United States
Constitution and ARt. 11, 17 of our own Constitution
requires that a person cannot be deprived of his liberty
without due process of law. The majority concedes that a
person must be advised of his Constitutional rights before
being committed in a civil proceeding. In criminal matters,
due process requires proof beyond a reasonable doubt in order
to deprive a person of his liberty. Civil commitment
presents the same type of serious infringement upon
individual liberty as does criminal incarceration. Also,
commitment to a mental health institution can have a
detrimental effect upon the way in which society perceives
the committed person. The same due process standard applied
to criminal commitments should therefore be applied to civil
commitments and proof beyond a reasonable doubt should be
required.