NO. 94-047
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN THE MATTER OF G.J.P., III
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.
COUNSEL OF RECORD:
For Appellant:
Terry L. Seiffert, Billings, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Carol Schmidt, Assistant Attorney General, Helena,
Montana
Dennis J. Paxinos, Yellowstone County Attorney,
Billings, Montana
Submitted on Briefs: July 7, 1994
Decided: September 12, 1994
Cl&k
Chief Justice J. A. Turnage delivered the Opinion of the Court.
G.J.P., III (G.P.), was involuntarily committedtothe Montana
State Hospital in August 1993. He appeals from the order of
commitment entered by the District Court for the Thirteenth
Judicial District, Yellowstone County. We affirm.
The issues are:
1. Was G.P. illegally detained under g 53-21-129, MCA?
2. Were G.P. 's procedural and constitutional rights otherwise
violated, mandating reversal of his commitment?
3. Did the District Court err in failing to rule on the
petition for conservatorship?
On August 11, 1993, Dr. David Carlson, a Billings, Montana,
psychiatrist, contacted the Yellowstone County Attorney's Office
and the Billings Police Department requesting an emergency
detention of G.P. pursuant to 5 53-21-129, MCA. G.P., who was an
attorney, was detained and placed in the psychiatric unit at
Deaconess Hospital.
The next day, at the request of Dr. Carlson and Phillip
Oliver, a self-described friend of G.P., the Yellowstone County
Attorney's Office filed a petition asking that G.P. be involuntari-
ly committed as a seriously mentally ill person. In his written
request for commitment, Oliver stated:
I have known [G.P.] for approximately six years.
Approximately four years ago he called upon my help to
aid him in his drinking problem. . . . [Alfter several
months [G-P.] resumed drinking and I had little contact
with him.
2
. . .
In November, 1991, after [G.P.] had been charged with
domestic abuse . . . he contacted me indicating that he
was thinking of killing himself. He was asking for help
and I suggested that he be committed to Deaconess Medical
Center. . . . That day [G.P.] was [voluntarily] admitted
to Deaconess Medical Center where he spent approximately
4 or 5 days before being transferred to the VA Hospital
in Sheridan, Wyoming for alcohol treatment. He was
released on Christmas Eve of 1991 to the best of my
knowledge.
. . .
. . . [I]n the spring of 1993, [G.P.] visited my office
indicating that he had started drinking again, that he
had another problem with domestic abuse and with the
police and had been involuntarily committed to Deaconess.
. . .
Subsequent to that time my partners and I have received
various phone calls from potential clients and other
attorneys regarding [G.P.]. Several of these people have
questioned whether [G.P.] would perhaps kill himself.
. . .
I received calls from Judge Stewart, of City Court, and
Judge Fillner, 13th Judicial Court Judge, regarding
[G.P.]'s erratic behavior in court and his inability to
represent clients in an effective and logical manner.
The phone calls have all been this week. In addition, I
have'talked to several local attorneys who have expressed
concern about [G.P.]'s potential danger to himself and to
others. . . .
In all of my many conversations with [G.P.], I have
noted in the past his discussions about doing harm to
others and to himself and what his mental state was at
that time. While he has not told me directly that he
wishes to harm himself or others recently, I noted in my
discussions with him, that he is of the same frame of
mind today and has the same attitude and exhibits the
same characteristics as during those times when I heard
him say that he was going to do himself in.
In his written request for commitment, Dr. Carlson stated
there was an immediate need to detain and hospitalize G.P. because
3
of ttno insight, very agitated, suicide rife." He further stated
G.P. had a "history of depression with suicide ideation & behav-
ior." Dr. Carlson said he had received multiple calls regarding
G.P.'s behavior and risk of suicide, and, since his hospitalization
the day before, G.P. had been "uncooperative & very psychotic."
At the initial hearing on August 13, 1993, the court advised
G.P. of his rights and appointed counsel, a "next friend," and a
professional person pursuant to 3 53-21-122(2), MCA. The court
appointed Dr. Carlson as the professional person and stated its
willingness to appoint a second professional person, to be selected
by G.P.
G.P. asked that he be released, arguing there was no probable
cause for his emergency detention. He testified that, during the
day he had been hospitalized, he had demonstrated "in many, many
ways" that if he were a danger to himself or others he could have
"hung myself or inflicted bodily harm upon myself or on other
individuals there." He also gave a lengthy, rambling monologue
about his plans to travel to Arkansas to go fishing with his former
boss: to speak to the national governors' conference in Tulsa,
Oklahoma, about his proposed charitable organization, which would
pay the national debt through citizen contributions into a
stovepipe hat; to make a trip to Washington, D.C., to meet with
President and Mrs. Clinton; and to be present for his daughter's
eighteenth birthday in Arkansas. The State asked that G.P.'s
hospitalization be continued until the commitment hearing. The
4
court granted that request, basing its ruling on the documents
attached to the petition and on G.P.'s own testimony.
A hearing on the petition for involuntary commitment was held
on August 18, 1993. The court heard testimony by several friends
of G.P., by Dr. Carlson, and by G.P. himself. At G.P.'s request,
the court also viewed writings which G.P. had drafted in magic
marker on the walls of his hospital room. G.P. explained the
writings, some of which he stated were in code, at length. G.P.
chose not to present testimony by a second professional person. At
the end of the hearing, the court ordered that G.P. be committed to
the Montana State Hospital for a period of up to three months.
Issue 1
Was G.P. illegally detained under § 53-21-129, MCA?
Section 53-21-129, MCA, provides:
Emergency situation -- petition -- detention. (1) 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 illness 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 be called prior
to taking the person into custody.
(2) If the professional person agrees that the
person detained appears to be seriously mentally ill and
that an emergency situation exists, then the person may
be detained and treated until the next regular business
day. At that time, the professional person shall release
the detained person or file his findings with the county
attorney who, if he determines probable cause to exist,
shall file the petition provided for in 53-21-121through
53-21-126 in the county of the respondent?s residence. In
either case, the professional person shall file a report
with the court explaining his actions.
5
G.P. maintains no emergency situation existed when he was
first detained, because he had not at that time exhibited any overt
acts, threats, or violence of any sort. He cites Matter of Shennum
(19841, 210 Mont. 442, 684 P.2d 1073.
In Shennum, Alan Shennum, armed with a loaded semiautomatic
pistol, seated himself in the public section of the chambers of the
Missoula City Council just before a scheduled Council meeting.
After he was discovered, apprehended, questioned, and relieved of
his weapon by local police, he was released. The next morning,
Shennum went to the police station to pick up his gun. He was
detained there and examined by a Missoula psychiatrist. Later that
day r he was transferred to the mental health unit of a local
hospital. A petition for commitment in the state mental hospital
was filed the following day.
This Court held that the record did not demonstrate a finding
by the psychiatrist of an emergency situation justifying Shennum's
detainment at the police station, and reversed his commitment.
Shennum, 684 P.2d at 1077. Noting that it was not clear whether
Shennum was still hospitalized when the opinion was issued, this
Court ordered that, if he was, his release should be pursued "with
all deliberate speed." Shennum, 684 P.2d at 1080.
The facts in Shennum differ from those in the present case in
important respects. Shennum was originally detained under § 53-21-
129 Cl), MCA, without the recommendation of a professional person.
Unlike Shennum, G.P. was detained at the request of a professional
6
person, Dr. Carlson. Under 5 53-21-129(2), MCA, the determination
of whether a person appears to be seriously mentally ill and an
emergency situation exists is left to the professional person,
whose request for emergency detainment is sufficient for detainment
until the next business day.
The dissent expresses concern about the propriety of Dr.
Carlson's determinations that G.P. was seriously mentally ill and
that an emergency situation existed. However, under 5 53-21-
129(2), MCA, the professional person's request for emergency
detainment is sufficient for detainment until the next business
day. The concerns expressed by the dissent might properly be
raised in an action against the professional person, but not in an
action challenging a commitment, such as this action.
Dr. Carlson testified at the hearing on August 18 that he
treated G.P. during and following his hospitalization three months
earlier. He said G.P. suffered from manic depressiveness, a
cyclical illness in which, after individuals have a "highV1 which is
not treated, they will Vrash8* into a severe depression. He
further testified that, in the days before he requested G.P.'s
emergency detainment, he had received many phone calls from persons
concerned about G.P.' s mental health, including another therapist
treating G.P. He stated that, at G.P.'s insistence, he met with
G.P. in a parking lot on August 10 so that G.P. could give him
copies of press releases relating to his charitable organization.
G.P. agreed to an appointment at Dr. Carlson's office the following
7
day. Dr. Carlson testified that G.P.'s history indicated that he
would become severely depressed when he "crashed" from his manic
high. Dr. Carlson was aware of all this before he filed the
original request for G.P. Is emergency detainment. G.P.'s claim
that there was no basis for Dr. Carlson to request his emergency
detainment is disproved by the record.
Further, at the time he filed his notice of appeal, G.P. was
no longer detained as a result of this proceeding. The remedy
provided in Shennum is therefore inapplicable.
On August 12, the next business day following G.P.'s initial
detainment, the county attorney filed a petition for commitment.
The requirements of § 53-21-129(2), MCA, were thus met. We point
out that the judgment of the county attorney and of the district
court are built-in checks upon the discretion of a professional
personal to restrain a person under 5 53-Zl-129(2), MCA, for more
than one day.
G.P. also contends his objection to his continued detainment,
made at his initial appearance before the court, should have been
granted. In its order continuing G.P.'s detainment, the District
Court stated that, based on the documents attached to the petition
for involuntary commitment and on G.P. 's own testimony at the
initial hearing, it found probable cause to detain him for his own
safety pending the commitment hearing five days later. After
reviewing the record, including G.P.'s own testimony, we conclude
the court did not err in so ruling.
8
Issue 2
Were G.P. Is procedural and constitutional rights otherwise
violated, mandating reversal of his commitment?
G.P. groups a number of claims under this issue. We first
address his argument that Phillip Oliver did not have the requisite
direct knowledge of the facts to make a request for commitment with
the county attorney pursuant to § 53-21-121, MCA.
Oliver admitted on cross-examination that he did not have
personal knowledge of any present threats or suicidal gestures on
the part of G-P. However, in his petition for commitment, he
stated he had personal knowledge that G.P. was "of the same frame
of mind today and has the same attitude and exhibits the same
characteristics as during those times [in the past] when I heard
him say that he was going to do himself in.'* Oliver's overall
knowledge of the facts concerning G.P. 's history and illness was
demonstrated in his testimony and request for involuntary commit-
ment. We conclude he had sufficient personal knowledge of the
facts to make a joint request for commitment, along with Dr.
Carlson, to the county attorney.
G.P. next claims his evaluation by Dr. Carlson pursuant to
5 53-21-129(2), MCA, improperly occurred prior to his initial
appearance before the District Court, instead of after the hearing
and after he was advised of his rights. He states the evaluation
was completed prior to the court granting Dr. Carlson the authority
to conduct the evaluation. Citing § 53-21-141(l), MCA, he also
9
complains that Dr. Carlson did not advise him that the interview
was to be used for the evaluation and not for treatment.
The court accepted into evidence two letters written by Dr.
Carlson. The first was written on August 12, the day before G.P.'s
initial hearing. This is the letter of which G.P. here complains.
However, G.P. has identified nothing in Dr. Carlson's August 12
letter which refers to privileged communication with G.P.
Dr. Carlson testified on August 18 that he tried to talk with
G.P. on at least five different occasions during G.P.'s hospital-
ization, but that G.P. was either too aggressive or not lVrousable'V
from sleep on most of those occasions. "We really felt that there
was very little accomplished by a subsequent interview, and we
would just let him sleep so we would not have to medicate him
further, put him in restraints."
Dr. Carlson's letter of August 17, 1993, which was the second
letter introduced into evidence, is germane to many of G.P.'s other
complaints concerning his treatment. This letter was written after
G.P.'s initial hearing and after G.P. was fully advised of his
rights.
G.P. claims he was "continually detained in seclusion and in
isolation as well as maintained in restraints" in violation of
5 53-21-146, MCA. He alleges that he was denied medical care for
broken ribs in violation of 5 53-21-142(11), MCA; denied the right
of telephone COmmUniCatiOn in violation of 5 53-21-142(3), MCA; and
10
administered medication within twenty-four hours before the
hearing, despite his objection, in violation of § 53-21-115, MCA.
In his August 17 letter, Dr. Carlson stated:
[G.P.] has continued to demonstrate extremely severe
symptoms of mental illness. In fact, if anything,
[G.P.]'s illness has worsened considerably over the last
few days.
[G.P.] has remained on the closed unit at the
Psychiatric Center. He has spent the majority of his
time being secluded to his room because of his severely
manic behaviors. . . . [G-P.] has been extremely destruc-
tive of hospital property. This includes an episode
shortly after admission where he wrote at great lengths
with magic marker filling one of the walls of his
hospital room with rambling, grandiose and delusional
content. . . . On the morning of 8/12 he had a noose
hanging from an air screen in his hospital room. He, the
following day, hung a bed sheet from this noose claiming
that it was an effigy but did not identify who this was
supposed to be. . . . We have had to limit his telephone
calls because of complaints of acquaintances about the
inappropriateness of his calls, both in terms of time of
day as well as duration and content.
On 8/14 [G.P.] became very agitated on the tele-
phone. He began banging the telephone on a counter and
then began indiscriminately waving the telephone
around[.] . . . When staff attempted to intervene, he
managed to get one of the nurses in a head lock, injuring
his neck. He then proceeded to kick at and kick another
employee. He has attempted to bite employees. He has
spit on employees and thrown urine in urinals at employ-
ees. [G.P.] is well aware of his HIV status[.] . . .
[G.P.] has essentially been in restraints about 90%
of the time since last Saturday's incident. During
attempts to take him out of restraints, although he is
initially agreeable and calm, he rapidly becomes very
agitated and assaultive again to staff. [G-P.] has
removed himself from restraints on three occasions
including an episode today where he cut himself out of
restraints using a piece of metal again obtained by
tearing up his mattress.
[G.P.] has completely refused treatment at our
hospital. . . . He has been ordered medication against
11
his will because of his obviously dangerous behaviors.
This medication has had to be administered intramuscular-
ly in almost every occasion.
[G-P.] shows no insight into his illness. He is
unwilling to take Lithium. . . . When he is not sedated,
he is almost unmanageable at its occlusion.
. . .
[G.P.] is truly a very ill individual. He has
severe characterologic symptoms, but at this time he is
obviously very manic and quite unable to care for himself
and his affairs. . . . He has made it almost impossible
to provide him with care in this setting. To that end,
I think [G.P]'s prognosis is generally very poor, but he
is deserving of the effort to provide him with treatment.
The right to be free from physical restraint and isolation
under s 53-21-146, MCA, is not absolute. It exists "except for
emergency situations." Dr. Carlson's letter explains generally the
use of isolation and restraints to control G.P.'s violent and
aggressive behavior toward hospital staff and patients. In his
allegations, G.P. has not identified any specific instance in which
he was restrained or isolated in violation of his rights.
Dr. Carlson testified that G.P. was not amenable to being
transported to the X-ray room of the hospital to have his ribs X-
rayed. Dr. Carlson further testified that the hospital does not
provide medical treatment for broken ribs other than X-raying them
to determine whether they are indeed broken.
Patients admitted to a mental health facility have the right
to llreasonable'V access to telephone communications. Section 53-21-
142(3), MCA. G.P. has not established that he was denied this
right. Dr. Carlson testified that G.P. was not denied all
12
telephone access. He was limited as to time and number of phone
calls, so that he could make no calls after midnight and other
patients could also use the phone.
Patients involuntarily detained for serious mental illness
have a right to be free from "any but lifesaving medication" for up
to twenty-four hours prior to a hearing. Section 53-21-115, MCA.
Dr. Carlson testified that he determined G.P.'s behavior was so
agitated that he was a risk to himself and a threat to the safety
of others. The District Court found that the medication given to
G.P. prior to the hearing was lifesaving. We conclude that finding
is supported by substantial credible evidence.
None of the rights claimed by G.P. are absolute. G.P. has not
demonstrated any restrictions on his rights other than those
necessary for his treatment, evaluation, and care. Further, G.P.
has not established that reversal of his commitment would be a
proper remedy for any such denial or restriction of his rights.
After reviewing the record, we conclude that G.P. has not estab-
lished that his commitment should be reversed due to violations of
his procedural and constitutional rights.
Issue 3
Did the District Court err in failing to rule on the petition
for conservatorship?
On August 26, 1993, G.P., through his counsel, filed a
petition asking the District Court, in the alternative, to (1)
direct his counsel how to proceed to protect G.P.'s assets,
13
practice, and clients, or (2) appoint a conservator of G.P.'s
estate, or (3) enter "such other appropriate orders for the
protection of [G.P.]'s assets and for the protection of [G.P.]'s
clients." In response to this request, the court entered an order
on September 3, 1993, authorizing G.P. Is counsel to secure G.P.'s
mail. G.P. was apparently discharged from the Montana State
Hospital on September 15, 1993.
G.P. argues that the court's "failure to rule on" his August
26 motion left his clients in a state of limbo of not having an
attorney to meet their legal needs. However, he has not described
any specific problems incurred by any of his clients. Furthermore,
his motion was set forth in the alternative. The court granted
relief in the form of authorizing G.P.'s counsel to secure G.P.'s
mail. The allegation that there was a "failure to rule" on the
motion on the part of the District Court is simply not true.
Suggestions for procedures to handle the caseloads of attorneys who
become suddenly unavailable to their clients due to mental illness
or other reasons might better be raised in another manner or to
another forum, such as the State Bar of Montana. We hold that the
District Court did not err as alleged under Issue 3.
We affirm the order of commitment entered by the District
Court.
We corlcllr :
15
Justice Karla M. Gray, dissenting.
I respectfully dissent from the Court's opinion on the issue
of whether G.P. was illegally detained under § 53-21-129, MCA.
When controlling statutes are applied, it is clear that the Court's
conclusion that G.P. was not illegally detained is incorrect.
G.P. originally was detained pursuant to § 53-21-129, MCA,
which provides for the extraordinary procedure of civilly detaining
a Montana citizen prior to any judicial involvement. The statute
provides in pertinent part:
Emergency situation -- petition -- detention.
(1) 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 illness 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 be called prior to taking the person into custody.
(2) If the professional person agrees that the person
detained appears to be seriously mentally ill and that an
emergency situation exists, then the person may be
detained and treated until the next regular business day.
Section 53-21-129, MCA. It is clear that the operative phrases are
"seriously mentally ill" and "emergency situation;" it is equally
clear that both elements must be met before a person may be
detained pursuant to § 53-21-129, MCA.
"Seriously mentally ill" is statutorily defined to mean:
suffering from a mental disorder which has resulted in
self-inflicted injury or injury to others x the imminent
threat of injury a which has deprived the person
afflicted of the ability to protect the person's life or
health. For this purpose, injury means physical injury.
A person may not be involuntarily committed to a mental
health facility or detained for evaluation and treatment
because the person is . . . suffering from a mental
disorder unless the condition causes the person to be
seriously mentally ill within the meaning of this part.
16
Section 53-21-102(15), MCA (emphasis added). "Emergency situation"
is statutorily defined to mean "a situation in which any person is
in imminent danger of death or serious bodily harm from the
activity of a person who appears to be seriously mentally ill."
Section 53-Zl-102(4), MCA.
Nothing of record relied on by the Court establishes that the
necessary circumstances existed here to support the emergency
detention of G.P. As a result, I conclude that the detention was
not legal. I begin with the assumption, seemingly established by
the record, that G.P. suffers from a mental disorder. Section 53-
21-102(15), MCA, makes it clear that suffering from such a disorder
is merely the threshold inquiry in determining whether a person is
seriously mentally ill: it is not sufficient to detain a person
under § 53-21-129, MCA, or to involuntarily commit that person
pursuant to 55 53-21-121 through 53-21-126, MCA.
The first question before the Court, then, must be whether
G.P. met any of the disjunctive criteria set forth in the statutory
definition of "seriously mentally ill." In this regard, only the
testimony of Dr. David Carlson is relevant, because he is the only
"professional person" involved in this matter and is the person
whose contact with the Billings police resulted in G.P.'s emergency
detention. Phillip Oliver's written support for the involuntary
commitment of G.P., set out at length in the Court's opinion, is
totally irrelevant to this issue: Mr. Oliver, an attorney and
friend of G.P., is indisputably not a "professional person" for
purposes of the emergency detention statute.
The Court cites the following as the totality of Dr. Carlson's
17
testimony about G.P. 's pre-detention situation:
1. Dr. Carlson had treated G.P. following an earlier
hospitalization three months earlier.
2. G.P. had a "history of depression with suicide ideation and
behavior."
3. G.P. suffers from manic depressiveness.
4 . In the days before the emergency detention, Dr. Carlson
received phone calls from persons concerned about G.P.'s mental
health.
5. In Dr. Carlson's opinion, G.P. was in a manic high in the
days immediately preceding the detention, and would become severely
depressed when he "crashed" from that high.
6 . It was Dr. Carlson's opinion that G.P. had "no insight,
very agitated, suicide rife."
While this testimony may well establish that G.P. has a history of,
and suffers from, a mental disorder, it does not establish that
G.P. was seriously mentally ill at the time of the detention as
required by statute. The testimony does not show that G.P.'s
mental disorder has resulted in injury to himself or others or the
imminent threat of such injury: nor does it show that the mental
disorder has deprived G.P. of the ability to protect his own life
or health. See 5 53-21-102(15), MCA.
Dr. Carlson's testimony also does not establish the existence
of an "emergency situation" as the legislature defined it in 5 53-
21-102(4), MCA. Nothing in that testimony shows that G.P. or
another person was in "imminent danger" of death or serious bodily
harm from G.P.'s activities.
While I agree with the Court's statement that a F, 53-21-129,
MCA, determination of "whether an emergency situation exists is
left to the professional person, II I agree only in the context of
applicable statutory definitions. The Court apparently intends to
allow "professional persons" to define both "seriously mentally
ill" and "emergency situation" as the mood strikes them and without
18
regard to statutory definitions. The result of the Court's
decision is exactly contrary to the legislature's carefully stated
intent that a person may not be either detained under the emergency
detention statute or involuntarily committed on the basis of a
mental disorder unless that disorder causes the person to be
seriously mentally ill. Moreover, the Court's decision results in
an unprecedented and unjustified expansion of the State's ability
to detain Montana citizens who suffer from mental disorders but who
have not been shown to be a danger to themselves or others. I
cannot agree that these results are legally correct or otherwise
appropriate. I dissent.
i
Justice William E. Hunt, Sr., dissenting:
I join in the dissent of Justice Gray.
Justxce
19
September 12, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Terry L. Seiffert
Attorney at Law
P. 0. Box 31181
Billings, MT 59107
Dennis J. Paxinos
Yellowstone County Attorney
P.O. Box 35025
Billings, MT 59107
Hon. Joseph P. Mazurek, Attorney General
Carol Schmidt, Assistant
Justice Building
Helena, MT 59620
EC1 SMITH
CL.ERK OF THE SUPREME COURT
STATB OF MONTANA
BY ”
Deputy u