No. 13719 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

IN THE MATTER OF CURTIS SONSTENG, 

Respondent-and Appellant. 

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. , 

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: 

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 convalescent 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 detention 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 kd 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 

a1 ternatives 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 submission to the court of affidavits serving a function similar 

to the reports submitted in Montana. 73A Cal.Welfare & Institutions 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 comrnitment 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 information 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 commitment 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 (4), 38-1305(7), R.C.M. 1947. 

Respondent attempts to establish a parallel between consideration 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, 
this Court expressly approved the provision of section 10-1311(3), 

R.C.M. 1947, which specifically authorizes the filing of a 

welfare department report support of a petition for temporary 

custody. Moreover, Moyer is authority for the proposition that 

a District Court is not in error in receiving a welfare report 

where the record fails to indicate the court considered the 

report in making the actual custody determination. 

In the instant case, the argument favoring reception of the 

report is stronger than in Moyer. Here, as in Moyer, the record 

in no manner suggeststhe District Court considered the reports 

filed in deermining respondent was seriously mentally ill. 

Both psychologist Gallagher and psychiatrist Dimarucot testified 

at the commitment hearing, and were subject to full cross-examination concerning both their professional opinions and the respective bash thereof. Further, submission of the report of a 

professional person is not merely permitted, but is in fact 

mandated by the express language of section 38-1306(6), R.C.M. 

1947. Respondent's position regarding such reports cannot be 

sustained . 

Issue 2. Respondent argues that a professional person 

who has treated a given patient cannot be examined as to any 

information acquired in the course of evaluation and treatment 

of such patient, under the psychologist/patient and physician/ 

patient privileges set forth at sections 66-3212 and 93-701-4, 

R.C.M. 1947. The alternative, it is maintained, is to require 

the professional person to advise the patient of his right to 

remain silent prior to the commencement of any interaction between them. I 
The deprivation of liberty entailed by an involuntary 

commitment has been justified by two distinct exercises of 

power by the state. The state, by virtue of the common law, 

retains the authority to act as "'the general guardian of all 

infants, idiots and lunatics"'. Hawaii v. Standard Oil Co., 405 

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

as parens patriae the state is vested with both the power and 

the duty to promote the interests and welfare of its citizens. 

As a sovereign, the state also possesses plenary power to 

make laws and regulations for the protection of public health, 

safety, welfare and morals, commonly referred to as police power. 

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

L.Ed. 643 (1905). The power of parens patriae, when exercised 

in accordance with the requirements of substantive due process, 

has been held to justify commitment of a person who is shown 

to have a mental disorder depriving him of the ability to protect 

his life or health, or rendering him dangerous to himself. In 

re Ballay, 482 F.2d 648, 658,659 (D.C.Cir.1973). Likewise, the 

police power justifies commitment of a person whose mental disorder has resulted in injury to others, or poses the imminent 

threat thereof. Jacob- v. Massachusetts, supra. 

As indicated by the definition of "seriously mentally ill" 

in Montana commitment statutes, a commitment may be predicated 

on either or both of the above powers, subject to the same strict 

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

we note that Montana's involuntary commitment statues, effective 

July 1, 1975, are most progressive in this 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 psychotherapist 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 hospitalization, 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 professional person at the hearing for commitment or extended detention 

and corequisite availability of such professional person for crossexamination 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 establish "dangerou~ness'~ and "inability to protect life or health" 

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 objectionable 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 District Court is affirmed. 

We Concur: 

Justices. 

. . . . . . . . . . 

Mr. Justice Frank I. Haswell concurring: 

I concur in the result. 

Justice.