Matter of Sonsteng

No. 13719
IN THE SUPREME COURT OF THE STATE OF MONTANA

1977

IN THE MATTER OF CURTIS SONSTENG,

Respondent-andAppellant.

Appeal from: District Court of the Third Judicial District,
Honorable Robert Boyd, Judge presiding.
Counsel of Record:
For Appellant:
James Dorr Johnson argued, Warm Springs, Montana
Steven Bunch, Helena, Montana
For Respondent :
Mark P. Sullivan argued, Butte, Montana
Nick A. Rotering, Helena, Montana

Submitted: November 28, 1977
Decided :D-E& c. ,

.-- :
Filed: --

Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

The Montana Department of Institutions, by state psychologist

Katherine Gallagher, comenced this action in the District Court,

Deer Lodge County, pursuant to Section 38-1312, R.C.M. 1947,
petitioning for extended detention of respondent at Warm Springs
State Hospital. Petitioner sought a declaration that respondent

was "seriously mentally ill" and should be committed to a mental

health facility for a period not to exceed three months.

Respondent Curtis Sonsteng was first committed to Warn

Springs by judicial order in 1951. Although released on con-

valescent leave in 1959, respondent was recommitted in 1962.
Respondent was last committed on February 8, 1964 by an order

of the Valley County District Court. He has remained at Warm

Springs since 1964. Currently, respondent is 48 years of age.

At some time prior to June 1976, respondent was placed

under the care and supervision of Katherine Gallagher, a staff

psychologist at Warm Springs and certified "professional person"

as defined in section 38-1302, R.C.M. 1947.
Section 38-1312, R.C.M. 1947, requires that any person
judged mentally ill prior to the enactment of Title 38, Chapter
13 shall, one year following the effective date of the act, be
released unless a petition for an extended detention order is
filed.
On June 29, 1976, Gallagher prepared and filed the required
petition, together with a written report and evaluation of
respondent's mental and physical condition as required by

section 38-1306(6), R.C.M. 1947, (now section 38-1306(3) by

amendment of 1977).
 Upon application of counsel for respondent, the district
judge appointed Dr. Ben Peters of Anaconda, Montana, to conduct

an independent evaluation of respondent. Respondent was detained

during the period of evaluation. On October 4, 1976, Dr. Peters

prepared a report concerning respondent.

On December 2, 1976, Dr. Avelina Dimarucot, a Warm Springs
psychiatrist, prepared and filed an additional evaluation report

on respondent's condition.

At the hearing held December 3, 1976, Gallagher testified

respondent was, in her opinion, seriously mentally ill and a

danger to himself and others. She concluded that further de-

tention for six months would be in the best interests of the
patient. Dr. Dimarucot, in her testimony, classified respondent
as "psychotic" and a danger to himself and others. Respondent

offered no testimony, professional or otherwise, nor did respondent

offer the report of the independent evaluator, Dr. Peters.

By its findings, conclusions and final order da k d December

3, 1976, the District Court found that alternatives other than

continued commitment were considered and rejected due to the

seriousness of respondent's mental illness, although the precise

a1ternatives were not enumerated. The district judge concluded
respondent was "seriously mentally ill" and ordered commitment

be continued for a period not to exceed six months. Respondent
appeals from that order.
The issues raised on this appeal are:
1. Did the District Court err in permitting, over objection,
the written report of the professional person concerning the

mental and physical condition of the patient to become a part
of the record?
 2 Did the District Court err in permitting the testimony
.
of respondent's institutional psychologist and psychiatrist, in

derogation of the psychologist/patient and physician/patient

privileges?
3, Was there sufficient evidence to support the conclusion

that respondent was "seriously mentally ill" beyond a reasonable
doubt ?

Issue 1. Respondent first contends the District Court erred in

failing to exclude from all consideration the reports of the
professional persons submitted in the instant case pursuant to
section 38-1306(6), R.C.M. 1947. On the one hand,respondent
maintains such reports must be properly entered into evidence

prior to their being considered. Yet, on the other hand, he

characterizes the reports as inherently inadmissible hearsay,
incapable of admission in any event.

Such reports typically contain brief medical histories

compiled from the hospital files of the various patients. Such

inclusion, we believe, is the foundation for respondent's

argument in this regard. Thus, it is asserted the reports are

inadmissible hearsay in that a portion of the material contained
in the reports is gleaned from accumulated documents in hospital

files consisting of unsworn statements. The resulting inability

of respondent to cross-examine the authors of such statements is
posited as a denial of due process. This argument misses the mark.
Submission of such reports at some point in an involuntary
commitment proceeding is provided for by virtually every state
statutory scheme. Illinois provides that hearing pursuant to

a petition for involuntary commitment must be commenced by the

filing of a certificate of a physician or psychologist. Ill. Rev.
Stat., Chap. 91 1/2, 58-3. In New York, admission can be made
upon a medical certification alone, with the burden of petitioning

for a hearing on the matter being shifted, for the most part,
to the patient. 34A McKinney, New York Mental Hygiene Law $31.27

et.seq..California, considered to be one of the forerunners in
the reform of civil commitment procedures,provides, by the 1969

Lanterman-Petris-Short Act, for a professional person's sub-

mission to the court of affidavits serving a function similar

to the reports submitted in Montana. 73A Cal.Welfare & Institu-

tions Code, $5 5301 et.seq.
The controlling Montana legislative provision in this

regard is section 38-1306(6), R.C.M. 1947. This section provided
in pertinent part:

"* * * the professional person in charge of the
patient may petition the court for extension of
the detention period. The petition shall be
accompanied by a written report and evaluation of
the patient's mental and physical condition. The
report shall describe any tests and evaluation
devices which have been employed in evaluating the
patient, the course of treatment which has been
undertaken for the patient and the future course
of treatment anticipated by the professional person.
** *'I

In analyzing the propriety of consideration of the report
by the district judge, it is significant to consider the role

af the report in the context of the Montana involuntary comrnit-

ment procedure generally. For this purpose, an analogy can be

found in the procedure whereby an affidavit in support of a

request for leave to file an Information is filed with a District
Court by a county attorney in a criminal case. Both the report
and affidavit are grounded in and compiled pursuant to informa-
tion derived from others. The weight and relative veracity

attached to such documents is based primarily upon the high

measure of professional responsibility traditionally inherent
in the offices of the persons submitting the documents to the
court. Their purpose, then, is in furnishing reasonable grounds

for initiation of a legal proceeding. The documents are in

neither case offered as substantive proof of that sought to be

demonstrated in the proceeding. As such, the question of the

admissibility of the reports or their alleged hearsay character

is in fact a nullity.
Respondent is correct in asserting that involuntary commit-

ment constitutes a deprivation of liberty which a state cannot

accomplish without due process of law. O'Connor v. Donaldson, 422

U.S. 563, 580, 95 S.Ct. 2486, 45 L ed 2d 396 (1975); Specht
v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 18 L ed 2d 326

(1967). It is well settled that due process entails the right

to cross-examination. Specht v. Patterson, supra. We find

sufficient protection of a patient's due process rights regarding

the limited consideration of the report in the fact that the
professional person compiling the report is required to be present

in court and subject to cross-examination. Sections 38-1306(6),

38-1306( ) 38-1305(7),
4, R.C.M. 1947.

Respondent attempts to establish a parallel between consid-

eration of the report of the professional person in a commitment

hearing and consideration of social welfare service investigative

reports in custody cases. Recent decisions of this Court require
the authors of such welfare reports to testify at the custody

hearing, subject to cross-examination, prior to any consideration
of the reports. In re Declaring Swan Children Youths in Need of

Care, Mont .-
3 567 P.2d 898, 34 St.Rep. 390 (1977); In re

Moyer, Mont . 9
- 567 P.2d 47, 48, 49, 34 St.Rep. 682 (1977);
Ronchetto v. Ronchetto, -Mont . , 567 P.2d 456, 34 St.Rep.

797 (1977). However, it is significant to note that in Moyer,
t h i s Court expressly approved t h e provision of s e c t i o n 10-1311(3),

R.C.M. 1947, which s p e c i f i c a l l y a u t h o r i z e s t h e f i l i n g of a

welfare department r e p o r t support of a p e t i t i o n f o r temporary

custody. Moreover, Moyer i s a u t h o r i t y f o r t h e proposition t h a t

a D i s t r i c t Court i s n o t i n e r r o r i n r e c e i v i n g a welfare r e p o r t

where t h e record f a i l s t o i n d i c a t e t h e c o u r t considered t h e

r e p o r t i n making t h e a c t u a l custody determination.

I n t h e i n s t a n t c a s e , t h e argument favoring reception of t h e

r e p o r t i s s t r o n g e r than i n Moyer. Here, a s i n Moyer, t h e record

i n no manner suggeststhe D i s t r i c t Court considered t h e r e p o r t s

f i l e d i n d e e r m i n i n g respondent was s e r i o u s l y mentally ill.

Both psychologist Gallagher and p s y c h i a t r i s t Dimarucot t e s t i f i e d

a t t h e commitment hearing, and were s u b j e c t t o f u l l cross-examin-

a t i o n concerning both t h e i r p r o f e s s i o n a l opinions and t h e respec-

t i v e b a s h thereof. F u r t h e r , submission of t h e r e p o r t of a

p r o f e s s i o n a l person i s n o t merely permitted, b u t i s i n f a c t

mandated by t h e express language of s e c t i o n 38-1306(6), R.C.M.

1947. Respondent's p o s i t i o n regarding such r e p o r t s cannot be

sustained .
I s s u e 2. Respondent argues t h a t a p r o f e s s i o n a l person

who has t r e a t e d a given p a t i e n t cannot be examined a s t o any

information acquired i n t h e course of e v a l u a t i o n and treatment

of such p a t i e n t , under t h e p s y c h o l o g i s t / p a t i e n t and physician/

p a t i e n t p r i v i l e g e s s e t f o r t h a t s e c t i o n s 66-3212 and 93-701-4,

R.C.M. 1947. The a l t e r n a t i v e , it i s maintained, i s t o r e q u i r e

t h e p r o f e s s i o n a l person t o advise t h e p a t i e n t of h i s r i g h t t o

remain s i l e n t p r i o r t o t h e commencement of any i n t e r a c t i o n be-

tween them.
I
 The d e p r i v a t i o n of l i b e r t y e n t a i l e d by an involuntary

commitment has been j u s t i f i e d by two d i s t i n c t e x e r c i s e s of

power by t h e s t a t e . The s t a t e , by v i r t u e of t h e common law,

r e t a i n s t h e a u t h o r i t y t o a c t a s " ' t h e g e n e r a l guardian of a l l

i n f a n t s , i d i o t s and lunatics"'. Hawaii v. Standard O i l Co., 405

U.S. 251, 257, 92 S.Ct. 885, 31 L ed 2d 184 (1972). Acting

a s parens p a t r i a e t h e s t a t e i s vested with both t h e power and

t h e duty t o promote t h e i n t e r e s t s and welfare of i t s c i t i z e n s .

A s a sovereign, t h e s t a t e a l s o possesses plenary power t o

make laws and r e g u l a t i o n s f o r t h e p r o t e c t i o n of public h e a l t h ,

s a f e t y , welfare and morals, commonly r e f e r r e d t o a s p o l i c e power.

Jacobson v. Massachusetts, 197 U.S. 11, 24,25, 25 S.Ct. 368, 49

L.Ed. 643 (1905). The power of parens p a t r i a e , when exercised

i n accordance with t h e requirements of s u b s t a n t i v e due process,

has been held t o j u s t i f y commitment of a person who i s shown

t o have a mental d i s o r d e r depriving him of t h e a b i l i t y t o p r o t e c t

h i s l i f e o r h e a l t h , o r rendering him dangerous t o himself. In

r e Ballay, 482 F.2d 648, 658,659 (D.C.Cir.1973). Likewise, t h e

p o l i c e power j u s t i f i e s commitment of a person whose mental d i s -

o r d e r has r e s u l t e d i n i n j u r y t o o t h e r s , o r poses t h e imminent

threat thereof. Jacob- v. Massachusetts, supra.

A s i n d i c a t e d by t h e d e f i n i t i o n of " s e r i o u s l y mentally ill"

i n Montana commitment s t a t u t e s , a commitment may be predicated

on e i t h e r o r both of t h e above powers, s u b j e c t t o t h e same s t r i c t

procedural requirements. Section 38-1302(13), R.C.M. 1947. Here

we n o t e t h a t Montana's involuntary commitment s t a t u e s , e f f e c t i v e

J u l y 1, 1975, a r e most progressive i n t h i s regard.
 It is manifest that the state interests entailed by the two
powers necessitate dispensing with the various forms of physician/

patient privilege. California maintains an express exception

to the privilege in instances where the psychotherapist has cause

to believe the patient suffers from a mental or emotional condition

rendering him dangerous to himself or to the person or property

of another. 29B Cal.Code 51024. The legislative intent in

creating the exception to the privilege requirement is contained

in the official law revision comment to California's 51024:

"* * * Although this exception might inhibit the
relationship between the patient and his psycho-
therapist to a limited extent, it is essential that
appropriate action be taken if the psychotherapist
becomes convinced during the course of treatment that
the patient is a menace to himself or others and the
patient refuses to permit the psychotherapist to make the
disclosure necessary to prevent the threatened danger.''

A broader exception, applicable where the psychotherapist in the
course of treatment, determines the patient is in need of hospital-
ization, has been recommended by the Commissioners on Uniform

State Laws. 13 U.L.A. Uniform Rules of Evidence, 5503(d) ( )
1.
In Montana, the statutes require the presence of the profes-

sional person at the hearing for commitment or extended detention
and corequisite availability of such professional person for cross-
examination evidence, which manifests a legislative intent to
create an exception to the privileged communications rule.

Sections 38-1305(7), 38-1306(4), 38-1306(6), R.C.M. 1947.
Precedent for such an exception can be found in the Montana Code
of Criminal Procedure, which renders admissible statements of
an examining psychiatrist on the issue of the mental condition
of the accused, whether privileged or not. Section 95-509,

R.C.M. 1947.
 Indeed, to uphold the assertion of the privilege in

commitment proceedings would be to frustrate the state interests

involved in the commitment procedure, rendering a patient's true

mental condition incapable of proof. The sole persons qualified

to render an educated psychological or medical opinion as to

the mental condition of a patient and its actual and potential
manifestations are those psychologists and psychiatrists who
have been engaged in evaluation and treatment of that patient.

Neither judges nor administrative personnel are as qualified
as psychologists and psychiatrists to render judgments concerning

a patient's mental condition. In re Bye, 115 Cal.Rptr. 382, 524
P.2d 854 (1974). We conclude that mental health professionals

on the hospital staff qualify as "neutral factfinders.I Accordingly,
'

we recognize an exception to the privilege in cases such as the

instant one.

Issue 3. Respondent finally challenges the sufficiency of
the state's proof of serious mental illness in the instant case.

The state has the burden of proving in an original commitment

or extended detention proceeding the following elements:

1. Mental disorder.
2. Resulting self-inflicted injury or injury to others
or the imminent threat thereof, or inability to protect life or
health.
Sections 38-1305(7), 38-1306(4), 38-1306(6), 38-1302(13), R.C.M.
1947. The standard of proof applicable in such proceedings is
proof beyond a reasonable doubt. Section 38-1306(6).

Proof of a mental disorder, defect or deficiency alone is

an insufficient basis for involuntary confinement. OtConnor v.

Donaldson, supra.
 Respondent argues, in essence, that the elements of
"dangerousness" and "inability to protect life or health" must

be proved by direct evidence of overt acts on the part of the
patient .
At the hearing, both professional persons, the sole witnesses,

testified respondent had a mental disorder rendering him a
danger to himself or others. Witness Gallagher testified

respondent suffers from schizophrenia and is seriously mentally

ill. Witness Dimarucot concluded respondent is psychotic.

Respondent failed to cross-examine the witnesses at any length

and offered no testimony in opposition to such conclusions.

While proof of various acts of a patient tending to estab-

lish "dangerou~ness'~ "inability to protect life or health"
and

through the testimony of persons related to or acquainted with

the patient is ultimately desirable, such is not required, nor
even possible in every case.
In cases such as the instant one, the state may establish a

prima facie case through the expert conclusions of qualified
professional persons. Testimony of such experts is not objection-
able merely because it embraces an ultimate issue to be determined

by the trier of fact. McGuire v. Nelson, 167 Mont. 188, 199,

536 P.2d 768 (1975).
Here, the state effectively established a prima facie case
that respondent was seriously mentally ill. The burden thereupon
shifted to respondent to overcome the case against him. Gibbons

v. Huntsinger, 105 Mont. 562, 74 P.2d 443 (1937). In the absence
of proof to the contrary, the District Court cannot be placed

in error for its conclusion.
 The order of the D i s t r i c t Court i s affirmed.

W Concur:
e

Justices.

.. . . . . . . . .
Mr. Justice Frank I . Haswell concurring:

I concur i n the r e s u l t .

Justice.