DA 09-0531

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 101N

IN THE MATTER OF THE MENTAL HEALTH OF:

T.M.,

Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. ADI 09-032

Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant Appellant

Defender; Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour,

Assistant Attorney General; Helena, Montana

John Parker, Cascade County Attorney; Marvin Anderson, Deputy County

Attorney; Great Falls, Montana

Submitted on Briefs: March 31, 2010

Decided: May 4, 2010

Filed:

__________________________________________

Clerk

Justice Brian Morris delivered the Opinion of the Court.

May 4 2010
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¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

OperatingRules, as amended in 2006, the following memorandumdecision shall not be cited

as precedent. It shall be filed as a public document with the Clerk ofthe Supreme Court and

its case title, Supreme Court cause number, and disposition shall be included in thisCourt’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 T.M. appeals the District Court’s order that involuntarily committed her to the

Montana State Hospital. We affirm.

¶3 Great Falls Police Department officers contacted T.M. on July 3, 2009, regarding a

series of threatening and abusive telephone calls to the office of the governor of Montana.

T.M. admitted making the calls. T.M. informed the officersthat she suffered froma serious

mental illnessthat required medication. T.M. further admitted that she wanted to burn down

her house. T.M. became angry and aggressive toward the officers during the course of the

conversation. The officersrestrained T.M. and drove her to the emergency roomof Benefis

Healthcare for examination.

¶4 T.M. became agitated and hostile towardsstaff members at the hospital. Dr. Patricia

Calkin, a board certified psychiatrist, evaluated T.M. and concluded that T.M.suffered from

mental disorders and chronic paranoid schizophrenia. Dr. Calkin recommended involuntary

commitment at the Montana State Hospital for a period of 90 days. Dr. Calkin further

recommended that the Montana State Hospital should have the authority to administer

involuntary medication should it become necessary to protect T.M., the hospital staff, and to

facilitate treatment.
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¶5 The District Court found that T.M.suffers froma mental disorder and that she is also

an imminent threat ofinjury to herself and others. The court concluded that commitment to

the Montana State Hospital for a period not to exceed 90 daysrepresented the leastrestrictive

and most therapeutic placement for T.M. The court considered and rejected other potential

alternatives. The court ordered T.M. committed to the Montana State Hospital for a period

not to exceed 90 days. The court also authorized the chief medical officer of the Montana

State Hospital to administer appropriate medication involuntarily, if necessary, to protect

T.M. or to facilitate her effective treatment. T.M. appeals.

¶6 T.M. argues on appeal that the District Court failed to make detailed factual findings

in support of its conclusion that T.M. required commitment to the Montana State Hospital.

T.M. further contends that the evidence presented at trial proved insufficient to authorize

T.M.’s commitment to the State Hospital. T.M. also challenges the court’s conclusion that

§ 53-21-126(1)(c), MCA, authorized commitment on the grounds that T.M. posed an

imminent threat of injury to herself or others.

¶7 We review the District Court’s findings of fact for clear error and its conclusions of

law for correctness. In re Mental Health of A.S.B., 2008 MT 82, ¶¶ 16-17, 342 Mont. 169,

180 P.3d 625. A finding is clearly erroneous if substantial evidence does not support it, if

the district court misapprehended the effect of the evidence, or if this Court is left with a

“definite and firm conviction” that the District Court made a mistake. A.S.B., ¶ 16. We

review the sufficiency of the evidence in the light most favorable to the prevailing party.

A.S.B., ¶¶ 16-17.
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¶8 We have determined to decide this case pursuant to Section 1, Paragraph 3(d), of our

1996 Internal OperatingRules, as amended in 2006, that provide for memorandumopinions.

It is manifest on the face ofthe briefs and record before usthat substantial evidence supports

the District Court’s findings of fact and that the court’s legal conclusions were correct.

¶9 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ JIM RICE

/S/ JAMES C. NELSON

Justice James C. Nelson concurs.

¶10 I concur in our Opinion. I write separately only to address one of the various

rationales utilized by the trial court and the State’s expert in involuntarily committing T.M.

under § 53-21-126(1), MCA.

¶11 Basically, the trial court and the State’s expert determined that T.M. posed a threat to

herself because she makes inflammatory statementsthat could precipitate an assaultupon her

by a third person—i.e., that T.M.’srude, verbal comments might cause another persontouse

violence against her and, thus, cause her to be injured. I strenuously disagree with this

rationale.

¶12 For one thing, this rationale is highly speculative—it presumes that persons who are

the butt of rude and inflammatory statements will react with violence toward the speaker.
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We do not—at least yet—live in that sort ofsociety. The vast majority of people who suffer

verbal insult are usually restrained if, by nothing else, the threat of criminal prosecution for

assault and, thus, do not return verbal abuse with physical violence.

¶13 Additionally, the court’s and the expert’s approach lessensthe evidentiary burden on

the State to show that because of the person’s mental disorder she is substantially unable to

provide for her own basic safety; has, through some recent, overt act or omission, caused

injury to herself or others; or may be an imminent threat to herself or others. Again, instead

of requiring the State to use direct or circumstantial evidence, the court’s and the expert’s

rationale permits the State to meet its burden of proof on the basis of pure speculation and

surmise.

¶14 Finally, no legal authority is cited for this approach.

¶15 More to the point, if we start permitting the involuntary civil commitment of persons

who are rude, verbally abusive or who make inflammatory statements and insulting remarks

on the premise that such speech will provoke violence against the speaker, then the

Legislature had best start building wings on the Montana State Hospital. Recognizing that

money is tight, the Legislature could start with a modest expansion—a right wing and a left

wing, for example. Then, as money becomes available and this approach catches on, the

Legislature could specialize, adding an east wing and a west wing, a shock-jock/talk-show

host wing, a wing for religious fanatics, a politicians’ wing, a pro-gun/anti-gun wing, a

special interest wing, etc. And, the beauty ofthis approach isthat once we give these various
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wingers a taste of our civil commitment system, society will be a much calmer, albeit less

interesting, place.

¶16 I disagree that rude, verbally abusive flamers necessarily suffer from a mental

disorder because they might encourage physical retribution upon themselves. They should

be ignored, not committed.

¶17 Aside from my disagreement with the above rationale, the court’s decision was

otherwise sufficient and should be affirmed. Accordingly, with this caveat, I concur.

/S/ JAMES C. NELSON