No. 84-488
IN THE SUPRE1M.E COURT OF THE STATE OF MONTANA
1985
IN THE MATTER OF ERNEST (BILL)
SIMONS, Respondent.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Robert Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark Sokkappa, Montana Legal Services, Warm Springs,
Montana
For Respondent:
Ted L. Mizner, County Attorney, Deer Lodge, Montana
Submitted on Briefs: Feb. 22, 1985
Decided: April 16, 1985
Filed: I :Ytifa
Clerk
Mr. Justice Frank R. Morrison, Jr. delivered the Opinion of
the Court.
Ernest (Bill) Simons appeals both his commitment to
Montana State Hospital for a 72-hour evaluation period and
his commitment to the same hospital for a period of 90 days.
We reverse both commitment orders.
We have jurisdiction over this matter pursuant to
§ 53-21-131, MCA, which states in pertinent part:
"Appellate review of any order of short-term
evaluation and treatment or long-term commitment
may be had by appeal to the supreme court of
Montana in the manner as other civil cases, except
that the appeal may be taken at any time ...
within 90 days after discharge . . . ."
This appeal was filed seven days following Mr. Simons'
discharge.
Respondent asserts that appellant has not properly
brought the record before us. Since there is no transcript
or agreed upon statement of facts, we confine our review to
the record before us - the District Court files for both
actions. Whether or not Simons signed a voluntary commitment
application on July 27, 1984, is irrelevant to the issue
before this Court, and will not be further treated.
Charles Sewell was appointed as Bill Simons' guardian
and conservator on March 15, 1984. On July 24, 1984, Sewell
filed a petition in the District Court of the Third Judicial
District, County of Powell, requesting that Simons be
committed to Montana State Hospital for a 72-hour evaluation
period, pursuant to S 72-5-322(1), MCA. Sewell's petition
was accompanied by a letter from Dr. Stanley N. Smith,
stating that Simons was in need of immediate incarceration
due to his suicidal tendencies. The District Court issued a
commitment order that same day.
We reverse that order. Mr. Simons was not provided with
notice of his impending commitment, attorney, or a hearing
prior to being committed. Section 72-5-322 ( 2 ) , MCA,
specifically states that a "ward is entitled to an
appointment of counsel and a hearing along with all other
rights guaranteed seriously mentally ill persons under
53-21-114, 53-21-115, 53-21-119, and 53-21-120." These other
rights include, among other important constitutional rights,
the right to notice. Failure to grant Simons these rights is
a violation of both his statutory and constitutional rights
of due process. Heryford v. Parker (10th Cir. 1968), 396
F.2d 393, 396.
On July 26, 1984, at the request of Charles Sewell, the
County Attorney for Powell County filed a petition requesting
that Simons be committed to Montana State Hospital for a
period of 90 days, pursuant to 5 53-21-121, MCA. That same
day, Charles Sewell, as guardian and conservator for Simons,
filed a consent to commitment in which he waived Simons'
rights to notice, an attorney and a hearing prior to
commitment. An order involuntarily committing Bill Simons to
Montana State Hospital for 90 days was issued July 26, 1984.
Again, Simons' statutory and constitutional rights of
due process were violated. Section 53-21-115, MCA, gives a
person against whom a petition for involuntary commitment has
been filed all rights guaranteed by the constitutions of the
United States and of the state of Montana, including the
right of notice, the right to a hearing and the right to
counsel. Sewell's attempt to waive these rights for Simons
was ineffective. Section 53-21-119(1), MCA, provides that
only the person to be committed, or if that person is
incapable of making an "intentional and knowing decision,"
his attorney and guardian acting in concert, may waive the
person's rights. Simons had no attorney as Sewell tried to
waive his right to one. However, "the right to counsel may
not be waived." Section 53-21-119(1), MCA.
Both orders committing Simons to Montana State Hospital
were obtained in violation of Simons' constitutional rights
of due process. Both orders are reversed.
We concur: