08/30/2017
DA 16-0156
Case Number: DA 16-0156
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 214
IN THE MATTER OF:
J.S.,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis And Clark, Cause No. CDI 16-21
Honorable James P. Reynolds, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Kristen L. Peterson, James
Reavis (argued), Assistant Appellate Defenders, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar (argued),
Assistant Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana
For Amicus Curiae:
Beth Brenneman (argued), Roberta R. Zenker, Disability Rights Montana,
Helena, Montana
Alex Rate, Legal Director ACLU of Montana, Missoula, Montana
Argued and Submitted: June 28, 2017
Decided: August 30, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 J.S. challenges her involuntary commitment to the Montana State Hospital (MSH)
ordered by the First Judicial District Court, Lewis and Clark County. The only issue J.S.
raises on appeal is whether she was denied the effective assistance of counsel. We
address J.S.’s claim of ineffective assistance of counsel and, in doing so, reconsider by
what standard such a claim should be measured. We affirm J.S.’s commitment.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 J.S. suffers from bipolar disorder. On January 30, 2016, an ambulance transported
J.S. to St. Peter’s Hospital after she was found in the middle of Lincoln Road in Helena.
J.S. had been “clipped” by a car and hit by the car’s mirror. She sustained several cuts
and abrasions. Because she was extremely psychotic and delusional, the emergency
room physician contacted Western Montana Mental Health Center (WMMHC) to do an
evaluation. Kim Waples (Waples), a mental health professional with WMMHC,
conducted an evaluation and concluded that J.S. was in need of emergency detention.
Waples contacted the County Attorney who filed a petition for J.S.’s involuntary
commitment. Pending trial on the State’s petition, J.S. was detained at MSH and
reassessed. Based on the reassessment, the State dismissed its petition and J.S. was
discharged to the community.
¶3 Several days later, on February 9, 2016, J.S. called 911 requesting help to get to
the Center for Mental Health. An officer transported J.S. there, but the Center for Mental
Health informed J.S. that she could not be seen for two days. The officer was concerned
about J.S. and asked her to go to the hospital, which J.S. agreed to do. While at the
2
hospital, emergency room staff contacted Kristina Gillespie (Gillespie), a mental health
professional, because J.S. was unable to communicate due to her extreme level of
psychosis and delusional thinking. She was paranoid, irritable, and unable to consent to
voluntary treatment. Additionally, J.S. had a serious wound on her leg which was not
being treated. Based on Gillespie’s evaluation, J.S. was detained on an emergency basis
at the Journey Home, a local mental health center. The State filed a petition to have J.S.
involuntarily committed. Trial was held on February 11, 2016.
¶4 Justin Kennedy (Kennedy), a nurse at the Journey Home who has experience with
skin and wound issues, treated J.S. Kennedy testified J.S. had two “dime-sized” open
areas which were 70 percent necrotic, or dead, tissue. The wound bed was at a high risk
of infection, which, if not treated correctly, could lead to loss of J.S’s leg or J.S.
becoming septic. Treatment of the wound required J.S. to change the dressings twice a
day and take two antibiotics, one of which J.S. had to take four times a day and the other
two times a day. J.S. would need to maintain supplies, which might be difficult given
Kennedy’s understanding that J.S. was homeless. Kennedy testified that he explained to
J.S. the regimen for changing her dressings and the frequency and need to take her
antibiotics; however, when he stepped away for five minutes and returned to reassess
whether she understood, J.S. was unable to repeat the regimen to Kennedy. She could
not restate the names of the antibiotics or how often she was supposed to take them. She
could not state how often she was to change her dressings. Kennedy testified that J.S.’s
mental illness was definitely playing a part in her inability to adequately care for her
wound.
3
¶5 Waples conducted J.S.’s evaluation in preparation for trial. In Waples’s report to
the court she indicated that J.S. was highly agitated, aggressive, and “postur[ing] towards
another resident in the [emergency detention] unit.” J.S. denied any history of mental
illness and when asked if she had ever been treated for a mental illness, responded
emphatically that she had not.1 Waples noted an extensive history of mental illness,
suicide attempts, and prior commitments. During trial, Waples testified that J.S. was
suffering from unspecified bipolar and related disorder, which could not be stabilized
without psychotropic medications. She presented as manic. She was delusional, agitated,
and irritable. Her thoughts were disorganized, punctuated by moments of clarity, but
then becoming disorganized again. Waples explained that while some people present as
delusional all the time, some will have moments of clarity. J.S. was grandiose and had
tangential speech. During Waples’s evaluation of J.S., J.S. would start to answer
questions, but then her thoughts would “derail[]” and her thinking would become
disorganized. Waples indicated that J.S. did not believe she had a mental disorder and
that such a belief would significantly affect J.S’s willingness and ability to seek treatment
on her own. According to Waples, a person who is disorganized in her thinking is unable
to consistently care for herself. Waples testified it is “hit and miss” and that sometimes
J.S. could get appropriate help, but if J.S.’s thoughts were delusional and disorganized,
“she might not really be able to connect where to go and what type of help to ask for.”
Finally, Waples asked J.S. if she knew what kind of care her leg required; J.S. just looked
at Waples and shrugged.
1
More specifically, J.S. stated, “You can shove your bipolar up your ass.”
4
¶6 Waples testified that MSH was the least restrictive placement for J.S. because her
history showed she does not think she has a mental illness. Waples opined that J.S.
would not seek treatment if she did not believe she was ill. Waples testified outpatient
community based programs such as the Program for Assertive Community Placement,
the Journey Home, or St. Peter’s Behavioral Health Unit were not appropriate because
they are voluntary and would require J.S. to seek help. Waples testified that J.S. told her
she did not need help or need to take psychotropic medications.
¶7 The record indicates that J.S.’s counsel attended Waples’s evaluation of J.S. at the
Journey Home and also obtained an independent examination from another professional
person, Dr. Bowman Smelko (Dr. Smelko). J.S.’s counsel chose not to present testimony
from the independent evaluation. On cross-examination of Waples, J.S.’s counsel
established many facts in support of her client’s position that the petition should be
dismissed, including J.S. had called 911 on her own, seeking transportation to the Center
for Mental Health; J.S. agreed to go to the hospital with police; J.S. understood the need
to take care of her wound; J.S. voluntarily took her medications during her prior detention
at MSH; J.S. voluntarily took medication to stabilize her acute mental distress while at St.
Peter’s Hospital prior to transfer to the Journey Home; and J.S. was not responsible for
knowing the timing of her medications when someone else was responsible for giving
them to her. J.S.’s counsel argued that the court should dismiss the petition because J.S.
had sought help when needed and accepted help each time it was offered. J.S.’s counsel
vigorously maintained that being homeless and not taking care of medical problems is
insufficient for the State to meet its burden to show that a person should be involuntarily
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committed.2 Counsel also consistently maintained that the State had two burdens to
meet: that commitment was necessary and that the commitment must be to the least
restrictive placement. Counsel argued that the State failed to meet each burden and,
consequently, the petition should be dismissed.
¶8 The District Court found counsel’s argument on behalf of J.S. compelling and
expressed its unwillingness to order commitment to MSH simply because a person is
homeless and unable to take care of medical needs. Although the court agreed that J.S.
initiated a call for services, the court nonetheless found the State had established J.S.’s
mental disorder was interfering with her ability to care for her severe infection. The court
2
J.S. argues, and the State concedes, that her counsel incorrectly represented to the court that community
placement was not an option, unless the court made findings pursuant to § 53-21-126(1)(d), MCA. We
are unable to conclude, however, that the record establishes such a contention is warranted. In response
to the court’s inquiry about where a reference in the code to community placement is located, J.S.’s
counsel explained, prior to the court having made any findings pursuant to § 53-21-126, MCA, that the
most restrictive placement which may be ordered pursuant to a finding under § 53-21-126(1)(d), MCA, is
a commitment to a community facility or program. J.S.’s counsel again revisited § 53-21-126(1)(d),
MCA, during the hearing and indicated a finding pursuant to § 53-21-126(1)(d), MCA, was one of two
options that would ensure a community placement of J.S., the other option still remaining was diversion.
J.S.’s counsel continued to explain that even if the State met its burden to show “she meets [the] criteria
for commitment [under § 53-21-126, MCA] . . . the statute regarding disposition, [§ 53-21-127, MCA],
clearly says that the Court has to then place her in the least restrictive placement. Just because, even if
they met that burden [under § 53-21-126, MCA] . . . that doesn’t mean . . . you just go straight up to the
State Hospital.” (Emphasis added).
The dialogue between the parties and the court was informal and, importantly, unclear as to
which sections of Title 53 were being discussed. It appeared, at times, the parties were discussing
diversion, which is a community placement that suspends the commitment hearing in such a manner that
it is unnecessary for the court to make any findings pursuant to § 53-21-126(1)(a)-(d), MCA, a position
J.S.’s counsel was advocating. It also appears the court “blended” the trial with the posttrial disposition
hearing, which J.S.’s counsel clearly understood were separate considerations and endeavored to explain
to the court the inquiries relevant under § 53-21-126, MCA (trial), and those under § 53-21-127, MCA
(posttrial disposition). Admittedly, J.S.’s counsel was not always clear in her discussion of community
placement within the context of diversion, trial, and disposition; however, based on this record, we are
unwilling to ascribe to J.S.’s counsel a misrepresentation of the law to the effect that a community
placement was not an option if the court made findings pursuant to § 53-21-126(1)(a)-(c), MCA.
Furthermore, even were we to conclude that J.S.’s counsel made such a misstatement of the law, counsel
continued to advocate that the petition should be denied because the State had not met its burden pursuant
to § 53-21-126, MCA, and that MSH was not the least restrictive placement.
6
lamented that it had no alternatives other than MSH, having ascertained that the Journey
Home was not an option, but determined that J.S’s history supported a conclusion that
J.S. would not take her medication, which was necessary to stabilize her mental disorder.
The court’s conclusion was supported by its finding that “the respondent’s inability to
consent to voluntary medication and her recent track record make her inappropriate for
community based placement.”
STANDARD OF REVIEW
¶9 Issues of due process and right to counsel in a civil commitment proceeding are
subject to plenary review. In re Mental Health of T.M., 2004 MT 221, ¶ 7, 322 Mont.
394, 96 P.3d 1147. Claims of ineffective assistance of counsel are mixed questions of
law and fact that this Court reviews de novo. In re J.S.W., 2013 MT 34, ¶ 26, 369 Mont.
12, 303 P.3d 741.
DISCUSSION
¶10 J.S. argues that she was denied the effective assistance of counsel during her
involuntary commitment proceeding in each of the areas of representation identified in In
re Mental Health of K.G.F., 2001 MT 140, 306 Mont. 1, 29 P.3d 485. We take this
opportunity to consider our decision in K.G.F.; the principles upon which the right to
counsel are premised; and the standards enunciated in K.G.F. to assess whether a person
has been deprived of that right.
¶11 In K.G.F. we addressed for the first time whether a respondent in an involuntary
commitment proceeding has a constitutional right to effective assistance of counsel and,
if so, how such effectiveness should be measured. We recognized that the Legislature
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had declared that a purpose of our laws governing the treatment of the seriously mentally
ill was to “ensure that due process of law is accorded any person coming under the
provisions of this part.” Section 53-21-101(4), MCA; K.G.F., ¶ 26. Importantly, in
furtherance of that purpose and regarding the right to counsel, the Legislature expressly
provided that a person has the right to be represented by counsel, § 53-21-115(5), MCA;
that a person who is indigent “shall” have counsel from the office of the public defender
appointed, § 53-21-116, MCA; and that the right to counsel may not be waived,
§ 53-21-119(1), MCA. Reading these statutory provisions together, this Court
determined that the Legislature intended counsel’s representation of a person against
whom a petition was filed to play a vital role in affording that person the basic rights of
due process of law. K.G.F., ¶¶ 26, 30.
¶12 We also acknowledged in K.G.F. that the Legislature had established other due
process rights to be afforded persons in civil commitment proceedings. These additional
safeguards include the right to a professional person of the person’s own choosing,
§ 53-21-118, MCA; if indigent, the right to have a professional person of the person’s
own choosing appointed who will be compensated from the public funds of the county
where the respondent resides, § 53-21-118, MCA; the right to notice reasonably in
advance of a hearing, § 53-21-115(1), MCA; the right to be present and to present
evidence and witnesses, § 53-21-115(2), MCA; the right to know in advance the names
and addresses of witnesses, § 53-21-115(3), MCA; the right to cross-examine witnesses,
§ 53-21-115(4), MCA; the right to remain silent, § 53-21-115(6), MCA; the right to
proceed in accordance with the rules of evidence, § 53-21-115(7), MCA; the right to be
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dressed in the person’s own clothes, § 53-21-115(10), MCA; the right to refuse
medication prior to a hearing, unless it is lifesaving, § 53-21-115(11), MCA; and the right
to voluntarily take necessary medications prior to any hearing, § 53-21-115(12). These
rights are “[i]n addition to any other rights that may be guaranteed by the constitution of
the United States and of this state . . . .” Section 53-21-115, MCA.
¶13 We also noted in K.G.F. that the rights afforded a person in a civil commitment
proceeding correspond to many “criminal” due process rights. See K.G.F., ¶ 33 (“[I]n
numerous respects the procedural due process rights of an involuntary commitment
patient-respondent are identical to those afforded an accused criminal defendant . . . .”)
Although a civil commitment proceeding is not criminal, it nonetheless involves
important individual interests, not at risk in a usual civil case. Here, statutory protections
under Title 53, chapter 21, MCA, were established by the Legislature “because of the
calamitous effect of a commitment . . . .” In re Shennum, 210 Mont. 442, 450-51, 684
P.2d 1073, 1078 (1984). See also Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780,
1785 (1992) (stating that freedom from bodily restraint has always been at the core of the
liberty protected by the Due Process Clause from arbitrary government action); Mathews
v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976) (stating that due process is
“flexible and calls for procedural protections as the particular situation demands”). Thus,
the civil commitment statutes provide numerous procedural protections akin to those in a
criminal prosecution, and which are not otherwise afforded a party in a civil proceeding.
¶14 In K.G.F., this Court explained that “where a state statute affords an individual
subject to involuntary commitment with the right to counsel, the legislature could not
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have intended that counsel could be prejudicially ineffective.” K.G.F., ¶ 30. The Court
concluded that the statutory right to counsel under Title 53, chapter 21, MCA, provides
an individual subject to an involuntary commitment proceeding the right to effective
assistance of counsel. “In turn, this right affords the individual with the right to raise the
allegation of ineffective assistance of counsel in challenging a commitment order.”
K.G.F., ¶ 31. The Court’s conclusion that the statutory right of counsel could not be
realized unless it was the right to effective assistance of counsel was sound and remains
well-reasoned. We continue to endorse such a conclusion and its underlying rationale.
¶15 In K.G.F. we also recognized that the statutory right to counsel “explicitly and
implicitly garner protection under both the federal and the Montana constitutions.”
K.G.F., ¶ 27. Importantly, and in our judgment correctly, K.G.F. rejected the notion that
the right to counsel flows from the Sixth Amendment to the United States Constitution or
Article II, Section 24 of the Montana Constitution, both of which expressly provide that
the accused in a criminal prosecution shall have the assistance of counsel. K.G.F.,
¶¶ 27-28. A respondent is neither accused nor charged with a crime; the proceeding
against a respondent is civil, attendant with the rules of civil procedure; and a civil
commitment is not pursued for the purpose of penalizing the respondent, but rather for
the purpose of ensuring the safety and treatment of the respondent. In K.G.F. we
concluded that the right to counsel derived from Montana’s Due Process Clause
contained in Article II, Section 17 (“No person shall be deprived of life, liberty, or
property without due process of law.”); but was also constitutionally premised upon
Article II, Section 4 (“The dignity of the human being is inviolable . . . ”) and Article II,
10
Section 10 (“The right of individual privacy is essential . . . and shall not be infringed
without the showing of a compelling state interest.”). We similarly conclude that the
right to effective assistance of counsel in civil commitment proceedings is premised upon
the Fourteenth Amendment to the federal Constitution and Article II, Sections 17, 4, and
10 of Montana’s Constitution. However, while we recognize that the right to dignity and
privacy are rooted in our civil commitment statutes and jurisprudence, to the extent we
are assessing the performance of counsel and counsel’s role in ensuring a fair trial, our
inquiry is necessarily focused on principles of due process. The measure of counsel’s
effectiveness in protecting the guarantee of a fair trial occurs through the Due Process
Clauses of the federal and state Constitutions.
¶16 Those courts that have recognized the right to effective assistance of counsel in
involuntary commitment proceedings have premised the right on each particular state
statute providing for counsel, as well as due process requirements of both federal and
state Constitutions. All courts recognizing a right to counsel in civil commitment
proceedings have drawn on Sixth Amendment precedent established by Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and its progeny, to inform the due
process inquiry and determine whether counsel has acted effectively in protecting the
guarantee of a fair trial. In K.G.F., however, we rejected the standard enunciated in
Strickland concluding that it “simply does not go far enough to protect the liberty
interests of individuals . . . who may or may not have broken any law, but who, upon the
expiration of a 90-day commitment, must indefinitely bear the badge of inferiority of a
once ‘involuntarily committed’ person with a proven mental disorder.” K.G.F., ¶ 33. In
11
K.G.F. the Court concluded “our legal system of judges, lawyers, and clinicians has
seemingly lost its way in vigilantly protecting the fundamental rights of such
individuals,” K.G.F., ¶ 42, and determined there was an “obvious systematic failure of
the involuntary civil commitment hearing process itself.” K.G.F., ¶ 49. The Court stated
its “aim” was “on the failure of the system as a whole, one that through the ordinary
course of the efficient administration of a legal process threatens to supplant an
individual’s due process rights . . . .” K.G.F., ¶ 49. The Court rejected Strickland’s
presumption of reasonable professional assistance because such a presumption was
flawed in a proceeding that “routinely accepts--and even requires--an unreasonably low
standard of legal assistance and generally disdains zealous, adversarial confrontation.”
K.G.F., ¶ 35.
¶17 Although the Legislature had already set forth numerous procedural safeguards,
which effectively distinguished civil commitment proceedings from usual civil cases, in
K.G.F. this Court nonetheless “enhance[d]” these statutory protections by “adopt[ing]
certain portions” of the National Center for State Courts’ Guidelines for Involuntary Civil
Commitment. K.G.F., ¶ 70. We identified five “critical areas” and established specific
tasks for counsel to undertake in order to effectively represent a client. Generally, those
areas are described as follows: (1) there must be an immediate appointment of competent
counsel with specialized training or supervised on-the-job training in the duties, skills,
and ethics of representing civil commitment respondents, K.G.F., ¶ 71; (2) specific tasks
required of counsel during the initial investigation were set forth by the Court, K.G.F.,
¶¶ 74-75; (3) specific tasks and inquiries related to the client interview and how it was to
12
be conducted were established by the Court, K.G.F., ¶¶ 77-80; (4) the right of the patient
to have counsel present during the evaluation by the professional person and the right to
remain silent were explained, K.G.F., ¶¶ 81-83; and (5) the Court set forth numerous
requirements concerning counsel’s vigorous advocacy, establishing a presumption that
the client wishes not to be involuntarily committed, K.G.F., ¶¶ 84-89.
¶18 Upon thorough consideration, we are convinced that many of the circumstances
which impelled this Court to reject Strickland, have proven unfounded. Our reasons are
several. First, the record frequently will not contain the details of counsel’s training and
qualifications, or discussions with the respondent. The record similarly will not contain
evidence of the attorney’s investigations or strategy. Thus, evidence pertaining to many
of the “critical areas” of representation identified in K.G.F. is not susceptible to direct
review on a challenge to an involuntary commitment. Second, we reject that there is “an
unreasonably low standard of legal assistance” provided respondents in civil commitment
proceedings. We have found little evidence of such in the numerous involuntary
commitment proceedings reviewed by this Court since K.G.F. Third, civil commitment
proceedings were contemplated by the Legislature to move quickly because respondents
against whom a petition has been filed have not yet been found to meet the criteria for an
involuntary commitment and the trial may result in dismissal of the petition, an outcome
respondent’s counsel should not seek to delay. If the respondent is in need of treatment
sufficient to meet the criteria for commitment then detention in a temporary facility
without treatment exacerbates the patient’s already acute mental health crisis. Finally,
strict compliance with Montana’s civil commitment statutes has always been required,
13
even when there is no allegation counsel was performing ineffectively. Regardless of
counsel’s performance, a commitment can be reversed based on a failure to strictly
adhere to the statute; reevaluating the standard by which effectiveness of counsel is
assessed, therefore, does not impugn our jurisprudence requiring strict adherence to civil
commitment statutes.3
¶19 We affirm our conclusion in K.G.F. that the Sixth Amendment and Article II,
Section 24 of Montana’s Constitution do not apply to civil commitment proceedings. We
also affirm that the right to the effective assistance of counsel in civil commitment
proceedings is grounded, not only in Montana’s express statutes providing for the right to
counsel, but also in the Due Process Clause of the United States Constitution and
Montana’s Constitution, Article II, Section 17 (“No person shall be deprived of life,
liberty, or property without due process of law.”); Article II, Section 4 (“The dignity of
the human being is inviolable.”); and Article II, Section 10 (“The right of privacy is
essential to the well-being of a free society and shall not be infringed . . . .”). We reject,
however, the premises upon which the Court jettisoned Strickland and its progeny and, in
its place, adopted a formalistic approach mandating “deliberate steps counsel should take
to effectively protect his or her client’s best interests . . . and ensure that the client
receives a formal and fair adversarial hearing . . . .” K.G.F., ¶ 64. Accordingly, while we
affirm that portion of K.G.F. establishing the statutory and constitutional basis for the
right to effective assistance of counsel in civil commitment proceedings, we overrule the
3
We have never held, however, that de minimus errors which do not result in prejudice to the respondent
will serve as a basis for reversal. See In re M.K.S., 2015 MT 146, ¶¶ 12-23, 379 Mont. 293, 350 P.3d 27
(declining to apply plain error doctrine to a statutory violation when respondent was not prejudiced).
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measure or standard enunciated in K.G.F. for assessing whether a person has been
deprived of that right. Some examination of Strickland—the standard by which
effectiveness of counsel is universally measured by other states in civil commitment
proceedings—is necessary.
¶20 In Strickland, the Supreme Court “recognized that the Sixth Amendment right to
counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” 466
U.S. at 684, 104 S. Ct. at 2063. However, the “guarantees [of] a fair trial [occur] through
the Due Process Clauses” which are informed by “the several provisions of the Sixth
Amendment, including the Counsel Clause . . . .” Strickland, 466 U.S. at 684-85, 104 S.
Ct. at 2063. The Sixth Amendment’s Counsel Clause thus informs the due process
inquiry by advising that “a fair trial is one in which evidence subject to adversarial testing
is presented to an impartial tribunal for resolution of issues defined in advance of the
proceeding.”4 Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. Based on principles of due
process, the Supreme Court recognized that the right to the assistance of counsel
“envisions counsel’s playing a role that is critical to the ability of the adversarial system
to produce just results.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. Hence, the Sixth
Amendment informs the due process inquiry and defines the “basic elements of the fair
4
The Counsel Clause of the Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense.
U.S. Const. Amend. VI.
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trial.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. “In giving meaning to the
requirement [of effective assistance of counsel], however, we must take its purpose—to
ensure a fair trial—as the guide.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.
Accordingly, “[t]he benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at
686, 104 S. Ct. at 2064.
¶21 The Supreme Court determined that “specific guidelines are not appropriate.”
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The right to effective assistance of
counsel “relies instead on the legal profession’s maintenance of standards sufficient to
justify the law’s presumption that counsel will fulfill the role in the adversary
process . . . .” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65. “Prevailing norms of
practice as reflected in American Bar Association standards and the like . . . are guides to
determining what is reasonable, but they are only guides.” Strickland, 466 U.S. at 688,
104 S. Ct. at 2065. As explained in Strickland:
No particular set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by defense counsel or the
range of legitimate decisions regarding how best to represent a criminal
defendant. Any such set of rules would interfere with the constitutionally
protected independence of counsel and restrict the wide latitude counsel
must have in making tactical decisions . . . . Moreover, the purpose of the
effective assistance guarantee of the Sixth Amendment is not to improve
the quality of legal representation, although that is a goal of considerable
importance to the legal system. The purpose is simply to ensure that
criminal defendants receive a fair trial.
466 U.S. at 688-89, 104 S. Ct. at 2065.
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¶22 In order to prevail on an ineffectiveness claim under Strickland, a defendant must
establish: (1) that counsel’s performance was deficient; and (2) that the deficient
performance prejudiced the defense, depriving the defendant of a fair trial. “The proper
measure of attorney performance remains simply reasonableness under prevailing
professional norms.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Moreover, judicial
scrutiny of attorney performance must be “highly deferential” since it is “all too tempting
for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence . . . [or] for a court . . . to conclude that a particular act or omission of counsel
was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. In order to fairly
assess attorney performance, every effort must be made “to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689, 104 S. Ct. at 2065. Because of the countless ways to provide effective
representation and the difficulties inherent in eliminating the distorting effects of
hindsight, there is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance . . . .” Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065.
¶23 Strickland thus explains that the Sixth Amendment right to counsel is needed in
order to protect the fundamental right to a fair trial guaranteed by the Due Process
Clause. In Strickland, the Sixth Amendment, including the Counsel Clause, defined the
basic elements of the fair trial in a criminal prosecution. 466 U.S. at 684-85, 104 S. Ct. at
2063. Importantly, the interests of a criminal defendant “are of such magnitude that
17
historically and without any explicit constitutional requirement they have been protected
by standards of proof designed to exclude as nearly as possible the likelihood of an
erroneous judgment.” Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808
(1979). This is accomplished under the Due Process Clause by requiring the State to
prove guilt of an accused beyond a reasonable doubt. Addington, 441 U.S. at 423-24, 99
S. Ct. at 1808; In re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J.,
concurring).5
¶24 “In a civil commitment state power is not exercised in a punitive sense.”
Addington, 441 U.S. at 428, 99 S. Ct. at 1810; K.G.F., ¶ 63. While counsel has an
adversarial role to play in the proceeding, “the legislated involuntary commitment
process must, as a matter of public policy, strive to maintain the ‘therapeutic influence’ of
the legal system on the individual.” K.G.F., ¶ 63 (citation omitted). There is no dispute
that a civil commitment constitutes a significant deprivation of liberty, often involving
the potential for compelled medication, which is among the historic liberties protected by
the Due Process Clause. Vitek v. Jones, 445 U.S. 480, 492, 100 S. Ct. 1254, 1263 (1980)
(citation omitted). Moreover, “an erroneous commitment is sometimes as undesirable as
5
The requirement that guilt of a criminal charge be established by proof beyond a
reasonable doubt dates at least from our early years as a Nation. The “demand for a
higher degree of persuasion in criminal cases was recurrently expressed from ancient
times [though] its crystallization into the formula ‘beyond a reasonable doubt’ seems to
have occurred as late as 1798. It is now accepted in common law jurisdictions as the
measure of persuasion by which the prosecution must convince the trier of fact of all the
essential elements of guilt.” Although virtually unanimous adherence to the
reasonable-doubt standard in common-law jurisdictions may not conclusively establish it
as a requirement of due process, such adherence does reflect a profound judgment about
the way in which law should be enforced and justice administered.
In re Winship, 397 U.S. at 361-62, 90 S. Ct. at 1071 (citations omitted).
18
an erroneous conviction.” Addington, 441 U.S. at 428, 99 S. Ct. at 1810. Civil
commitment proceedings, however, employ an intermediate level or standard of proof—
the “clear and convincing” standard—which is frequently invoked to protect important
individual interests in civil cases. Montana requires that “physical facts” be proven
beyond a reasonable doubt, and that the standard of proof as to all other matters is clear
and convincing. Section 53-21-126(2), MCA. Consistent with the burden of proof in
areas of medical discipline, Montana’s civil commitment statutes require that “the
respondent’s mental disorder must be proved to a reasonable medical certainty.” Section
53-21-126(2), MCA. Therefore, to meet due process demands, the standard of proof in
Montana’s civil commitment proceeding informs the factfinder that the proof must be
greater than the preponderance of the evidence standard; but, with the exception of
physical facts, less than the reasonable doubt standard. The standard of proof in a civil
commitment proceeding is clear and convincing evidence.
¶25 In consideration of the foregoing, we do not accept the proposition in K.G.F. that
Strickland “simply does not go far enough to protect the liberty interests of individuals”
who may be involuntarily committed, K.G.F., ¶ 33, when the Strickland standard is
sufficient to protect the interests of a criminal defendant which “are of such magnitude
that historically and without any explicit constitutional requirement they have been
protected by standards of proof designed to exclude as nearly as possible the likelihood of
an erroneous judgment.” Addington, 441 U.S. at 423, 99 S. Ct. at 1808. The clear and
convincing standard of proof required in a civil commitment is high because of the
important individual interests at stake; it is still, however, a lesser standard of proof than
19
in a criminal prosecution. While the liberty interest at stake in a civil commitment
proceeding is significant, it is no greater than the liberty interest at stake in criminal cases
where Strickland applies.
¶26 We also conclude the analysis and standard enunciated in Strickland is flexible
and will allow professional norms and guidelines to be considered, but not determinative,
in evaluating whether counsel’s performance was reasonable considering all the
circumstances. The “critical areas” of representation identified in K.G.F. may be useful
and perhaps will provide guidance for determining what is reasonable in the context of
prevailing professional norms and circumstances of a particular case. Importantly, we are
cognizant that our function, here, is that of a court guided by our Constitution and
statutes; not as a professional association, which functions to improve and monitor the
quality of its profession based upon input from practitioners in particular fields of
expertise. Our purpose is simply to ensure that a respondent has received the effective
assistance of counsel designed to protect her guarantee of a fair trial. To that end, just as
the Sixth Amendment right to counsel defines the basic elements of a fair trial guaranteed
by the Due Process Clause, the procedural safeguards embodied by the Legislature in
Title 53, chapter 21, MCA, inform the inquiry as to counsel’s primary obligation in civil
commitment proceedings. Application of Strickland will allow other considerations, as
well, which may be relevant under the circumstances and are “[i]n addition to any other
rights which may be guaranteed by the constitution of the United States and of this
state . . . .” Section 53-21-115, MCA. We further conclude that to fairly assess counsel’s
performance every effort must be made to eliminate the distorting effects of hindsight
20
and to evaluate counsel’s conduct from counsel’s perspective at the time. Accordingly,
“[a] court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 671, 104 S. Ct.
2056. We do not find such a presumption inconsistent with the requirement that there be
strict compliance with the civil commitment statutes; we have and will continue to
require strict compliance to the civil commitment statutes regardless of counsel’s
performance. Henceforth, Strickland will be the standard by which this Court measures
the effectiveness of counsel in civil commitment proceedings.
¶27 We turn now to the case at hand. Aside from J.S.’s contention that counsel
misapprehended the district court’s authority to order a community placement, a
contention we cannot fairly draw from the record, J.S. argues that her counsel failed to
investigate community placement options or, alternatively, failed to request a continuance
of the disposition hearing to allow an adequate investigation into alternatives. First, our
review of the record convinces us that J.S.’s counsel was representing her client’s wishes
by seeking to have the petition dismissed with no community placement commitment at
all. J.S.’s counsel appreciated that it was the State’s burden, not J.S.’s, to establish by
clear and convincing evidence that there was a need for commitment in the first instance.
J.S.’s counsel endeavored to hold the State to its burden. Despite the therapeutic purpose
of a commitment proceeding, it nonetheless constitutes an effort by the State to deprive
an individual of a significant liberty interest. The burden of proving that a commitment is
necessary therefore remains with the State and a respondent has the right to require the
State to meet its burden of proof.
21
¶28 Second, it remained clear that there were no appropriate community placement
options for J.S., since she denied having a mental illness and did not believe she needed
to take stabilizing medication. Section 53-21-127(3)(b), MCA, does authorize the court
to “commit the respondent to a community facility or program or to any appropriate
course of treatment . . . as provided in 53-21-149 . . . .” Section 53-21-149, MCA, in
turn, provides that “the court may order the following conditions for treatment in a
community facility or program . . . including but not limited to following a treatment plan
developed pursuant to 53-21-150 . . . .” If a court orders a treatment plan, the chief
medical officer or designee of the facility at which the respondent is being treated must
submit a treatment plan to the court, which the court may either accept or require a
revised treatment plan that is “approved by a mental health professional.”
Section 53-21-150(2) and (5), MCA. Here, Waples was the only mental health
professional who presented medical evidence. Waples did not support treating J.S. in a
community facility or program, or recommend a course of treatment as provided in
§ 53-21-149, MCA. Importantly, J.S.’s counsel secured an expert, Dr. Smelko, who
evaluated J.S. and did not testify for J.S., presumably because Dr. Smelko was not
disputing the need for treatment of J.S. at MSH. Notwithstanding, Waples’s
recommendation that commitment to MSH was the least restrictive placement option was
clearly supported by the evidence: J.S. was agitated, irritable, and “posturing” towards
other residents; J.S. did not believe she had a mental illness, despite having an extensive
history of illness and commitments; J.S. did not believe medication to treat her mental
illness was necessary; and J.S. had a severe, potentially life-threatening injury, which was
22
not being adequately cared for by J.S. due to her mental illness. It was similarly
unnecessary for J.S.’s counsel to request a continuance of the disposition hearing to
explore placement options since J.S.’s counsel had already consulted with Dr. Smelko.
Unfortunately, J.S. did not believe she had a mental illness and would not accept the need
to take stabilizing medication, thus rendering a community placement futile. We
conclude J.S.’s counsel was not deficient for failing to present alternatives which clearly
were not appropriate, nor is it necessary to remand for a hearing to determine why
evidence of alternative placements was not presented.
¶29 J.S. also argues that her counsel failed to object to inadmissible hearsay evidence
when Waples testified to background information that J.S. called 911 and voluntarily
agreed to go to the emergency room. However, J.S.’s counsel used these facts to argue
the petition should be dismissed. J.S. also argues that her counsel’s failure to
immediately object to inadmissible hearsay evidence Waples provided regarding J.S.’s
behavior at the Journey Home, led the court to rely on the inadmissible testimony. The
court though overruled the objection and considered it anyway, noting the information
was from Waples’s report which was the basis for Waples’s opinion. The court’s ruling
on an objection which actually was made, especially in the context of a bench trial, does
not establish deficient performance. Further, testimony that J.S. would not be accepted
into the Journey Home was in response to a question specifically asked by the court.
¶30 J.S. contends she was denied the right to testify at trial and her right to remain
silent during Waples’s evaluation, specifically when the State relied upon her refusal to
answer Waples’s questions about how to take care of her wound. The record does not
23
support J.S.’s argument that J.S. was prevented from testifying or that J.S. wanted to
testify because she was frustrated with her counsel’s performance. While remand
remains an appropriate option under some circumstances, we do not find that those exist
here. Regarding the State’s reliance on J.S.’s failure to answer Waples’s questions about
taking care of her wound during Waples’s evaluation, § 53-21-115(6), MCA, which
provides for the right to remain silent, does not state that the respondent’s failure to speak
is inadmissible. The statute merely indicates that the respondent may not be forced to
testify and otherwise has the right to remain silent. The right to remain silent embodied
in § 53-21-115(6), MCA, is a statutory right, which garners no protection under the Fifth
Amendment applicable to criminal proceedings.
¶31 We conclude that J.S.’s counsel effectively assisted J.S. in her civil commitment
proceeding. J.S.’s counsel held the State to its burden of proof and insisted on dismissal
of the petition arguing that a person cannot be committed solely on the basis that they are
homeless and have a severe medical condition. J.S.’s counsel cannot be faulted for the
lack of available resources and alternatives, due in part to her client’s refusal to
acknowledge her mental illness and the corresponding need for medication. The
testimony established that J.S.’s potentially life-threatening infection was exacerbated by
her mental illness; an illness J.S. refused to acknowledge. J.S.’s counsel competently and
vigorously argued for J.S. and it is unnecessary to remand for an evidentiary hearing.
CONCLUSION
¶32 We affirm K.G.F. to the extent it recognized a statutory right to effective
assistance of counsel and a right to counsel premised upon the federal Due Process
24
Clause and Montana’s right of due process contained in Article II, Section 17. We also
affirm the conclusion reached in K.G.F. that a respondent in a civil commitment
proceeding does not have a Sixth Amendment right to counsel. We clarify K.G.F. by
holding that, while our civil commitment statutes and jurisprudence are rooted in the right
to dignity (Article II, Section 4) and right of privacy (Article II, Section 10), the
effectiveness of counsel in protecting the guarantee of a fair trial is based on principles of
due process. We overrule K.G.F. to the extent that it requires a formalistic approach to
measure counsel’s effectiveness; that “critical areas” of representation must be assessed
in measuring counsel’s performance; and that it repudiates application of Strickland in
civil commitment proceedings. The standards and principles enunciated in Strickland for
measuring the effectiveness of counsel are henceforth to be applied in civil commitment
proceedings. Finally, we conclude the statutory rights embedded in Title 53, chapter 21,
MCA, inform the inquiry of whether a respondent has received the effective assistance of
counsel, although the enumerated statutory safeguards are not exclusive and
circumstances of a particular case may dictate other considerations.
¶33 Applying the foregoing to the case sub judice, we reject J.S.’s claim that she did
not receive the effective assistance of counsel during her commitment proceeding. J.S.’s
order of commitment is affirmed.
/S/ LAURIE McKINNON
25
We Concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
26