No. 93-652 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MENTAL HEALTH 

OF E. M., 

~espondent and Appellant* 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted 0. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert Allison, Kalispell, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General; 

Pamela P. ~ollins, Assistant Attorney General, 

Helena, Montana 

Thomas J. Esch, County Attorney; Valerie Wilson, 

Deputy County Attorney, Kalispell, Montana 

Submitted on Briefs: April 28, 1994 

Decided: May 31, 1994 

Filed: 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

E.M. appeals from an order of the District Court for the 

Eleventh ~udicial ~istrict, Flathead County, committing her to a 

mental health facility for a period of up to ninety days. We 

affirm. 

The issue is whether a verbal statement of a threatening 

nature may constitute an overt act within the meaning of 5 53-21- 

126(2), MCA. 

On September 30, 1993, the Flathead County Attorney's office 

filed a petition for involuntary commitment of E.M. Attached to 

the petition was a report prepared and signed by two mental health 

professionals employed by the Northwest Montana Regional Community 

Mental Health Center. 

According to the report, E.M. was a fifty-seven-year-old widow 

with no known relatives. Mental health professionals evaluated her 

after a friend of hers reported that E.M. had stated that she 

planned to buy a gun and then shoot a neighbor and herself. When 

the mental health professionals spoke with E.M. in her home, she 

again stated her plan to shoot her neighbor and herself. The 

report further stated that E.M. appeared to be suffering from a 

delusional disorder and to be capable of carrying out her plan. 

Although E.M. had no reported previous mental illness, the mental 

health professionals wrote that, when interviewed, she had a 

Ifparanoid delusion evidenced by ideas that neighbor is entering 

[her] apt. + disturbing objects + T.V. signalstt and that E.M. Is 

insight and judgment were "grossly impaired.If 
The District Court held a hearing on the petition on October 

5, 1993. E.M. was present and was represented by counsel and by a 

court-appointed friend of respondent. A mental health professional 

who signed the report was the sole witness. 

Although E.M. does not challenge the finding that she suffers 

from a mental disorder, we set forth some of the evidence on that 

point to place the issue on appeal in context. The mental health 

professional diagnosed E.M. as suffering from paranoia, a delusional disorder, and possible underlying depression. She testified 

that E.M. told her the neighbor had been in her apartment and had 

cut little holes in her long johns. When the mental health 

professional suggested another reasonable explanation might be that 

the long johns were coming apart at the seams after laundering or 

that there was some defect in the garment, Iv[E.M.] got quite 

agitated with us. There was no other explanation . . . The 

mental health professional also testified that E.M. stated her 

neighbor had been entering her apartment and smearing feces on her 

toilet and interfering with her television and radio reception with 

electronic devices. 

The court denied a motion by E.M. Is attorney to dismiss the 

petition. It found that E.M. was seriously mentally ill and in 

need of treatment. It ordered that she be committed to Glacier 

View Hospital at her own expense for a period not to exceed ninety 

days. The court further provided for a conditional release to 

Lamplighter House upon E.M.Is compliance with the medical and 

treatment program and no further acts or threats of violence. 
May a verbal statement of a threatening nature constitute an 

overt act within the meaning of 1 53-21-126(2), MCA? 

Montana's procedures concerning petitions for involuntary 

detention of a person at a mental health facility are set forth at 

55 53-21-121 through -127, MCA. Section 53-21-126 (2) , MCA, 

provides : 

The standard of proof in any hearing held pursuant to 

this section is proof beyond a reasonable doubt with 

respect to any physical facts or evidence and clear and 

convincing evidence as to all other matters, except that 

mental disorders shall be evidenced to a reasonable 

medical certainty. Imminent threat of self-inflicted 

injury or injury to others shall be evidenced by overt 

acts, sufficiently recent in time as to be material and 

relevant as to the respondent's present condition. 

E.M. questions whether a verbal statement of a threatening nature 

is sufficient to constitute an "overt actn under the statute. 

E.M.'s question has been addressed in cases previously decided 

by this Court. "A threat to kill is a verbal act that falls within 

the definition overt act' as set forth the statute. It 

re Goedert (1979), 180 Mont. 484, 487, 591 P.2d 222, 224. The 

Court later elaborated: 

The threat to kill another is a verbal overt act. It 

manifests the commission of a dangerous act upon oneself 

or another. When there is proof beyond a reasonable 

doubt that there is a present indication of probable 

physical injury likely to occur at any moment or in the 

immediate future, coupled with the finding within a 

reasonable medical certainty that the individual is 

suffering from a mental disorder, then involuntary civil 

commitment of that person is required. 

In re F.B. (1980), 189 Mont. 229, 233, 615 P.2d 867, 869-70. We 

have further explained our rationale as follows: 

Our citizens are entitled to protection from harm at the 

hands of those unfortunate persons who are victims of a 
mental disorder. Most certainly the legislature never 

intended that blood of innocent people must first be shed 

before the statutory definition of "overt actww has been 

satisfied. 

In re J.B. (1985), 217 Mont. 504, 510, 705 P.2d 598, 602. 

E.M. argues that her case is not comparable to the above-cited 

cases because, in those cases, the court relied upon other behavior 

in addition to a single verbal threat. She asserts that there has 

been no showing of violent behavior by her in the past or "of even 

the slightest scintilla physical act sort directed 

against another in furtherance of this threat or, for that matter, 

any prior incidents." 

The record demonstrates that E.M. made repeated threats to end 

her neighbor's life and her own life and that she may have obtained 

a gun. The mental health professional testified as follows about 

an interview with E.M. after the petition was filed: 

And then on the 30th I was present at that interview, and 

she clearly stated that she had made up her mind to get 

the gun and we could not talk her out of it. When I 

asked her if she had a gun already, she smiled and said, 

"1 won't tell you that. She told me that she is a 

determined person. And when we offered other possibilities of settling these disputes with her neighbor, 

including having meetings with the two of them, bringing 

some of the complaints out to open discussion, she stated 

that, "1 will do it my way." We again asked her "her 

waytww and she said, "I will shoot him, you better believe 

it. 'I 

On cross-examination, the mental health professional testified that 

E.M. refused to answer a question as to whether she had already 

taken further steps to obtain a gun. The mental health professional also testified that she believed E.M.'s threats constituted a 

very clear danger to the neighbor and to E.M. herself. 
We conclude that the District Court did not err in ruling that 

the State provided clear and convincing evidence of overt acts 

constituting an imminent threat of injury to herself and another on 

the part of E.M. We hold that the court did not err in ordering 

E.M. involuntarily committed to a mental health facility. 

Af f inned. 

We concur: 

w 

Justices 
Justice William E. Hunt, Sr., dissenting. 

I dissent. I recognize the difficulty these cases present and 

the dilemma often faced by law enforcement officers, prosecutors, 

and district judges, but the statute does provide that to prove 

imminent threat of injury requires some sort of overt act, recent 

enough in time to be relevant to the respondent's condition. 

Section 53-21-126 (2) , MCA. I agree with Justice Morrison's dissent 

in MatterofLP., 217 Mont. 504, 511, 705 P. 2d 598, 603 (Morrison, J., 

dissenting), where he said that vtcourts should be vigilant in 

protecting the rights of those sought to be committed. The 

discharge of judicial responsibility includes rigorous application 

of the statutory mandate." As in that case, the State here has 

failed to prove that E.M. took any actions to demonstrate a present 

danger to either herself or to others. She is a 57-year-old widow 

who has shown no inclination toward violence, and has only made 

verbal threats. If we allow verbal threats alone to be sufficient 

to lock somebody up for 90 days, whether or not at their own 

expense, we have gone a long way away from our judicial 

responsibility. 

Justice