No. 83-459 

IN THE SUPREPlE COURT OF THE STATE OF I"I0NTANA 

1984 

IN THE biATTER OF THE PETITION OF 

M.C., 

Petitioner and Respondent, 

DEPARTMENT OF INSTITUTIONS, et a1 . , 

Respondents and Appellants. 

APPEAL FROf4: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Nick A. Rotering, Dept. of Institutions, Helena, 

Montana (argued) 

For Respondent: 

James Dorr Johnson, Warm Springs, Montana (argued) 

Submitted: zaarcl~ 15, 19 84 

Decided: June 28, 1984 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This case comes on appeal from an order of the 

District Court, Third Judicial District, Deer Lodge County, 

holding that Section 53-21-130, MCA is unconstitutional. We 

reverse that part of the order declaring Section 53-21-130, 

MCA, unconstitutional. However, we also hold the State did 

not adhere to the procedural safeguards set forth in Section 

53-21-130, MCA, and affirm the issuance of the writ of 

habeas corpus by the District Court. 

M.C. is a sixteen-year-old juvenile who was committed 

to the custody of the Department of Institutions under the 

Youth Court Act on December 16, 1982. M.C. was initially 

placed at the Pine Hills School for boys. On February 17, 

1983, he was transferred from Pine Hills School to Warm 

Springs State Hospital pursuant to his signing a voluntary 

admission to that facility. In early March of 1983, M.C. 

gave notice to the Warm Springs staff that he wanted to be 

released from his voluntary admission. At that time, the 

Department of Institutions filed a petition for an 

involuntary commitment under the Mental Health Act. When 

the matter came on for hearing on March 25, 1983, the 

Department of Institutions failed to file a professional 

status report. As a result, the District Court dismissed 

the petition and ordered M.C. returned to Pine Hills School. 

On May 24, 1983, the Superintendent of Pine Hills 

School asked the Department of Institutions to return M.C. 

to Warm Springs State Hospital under the provisions of 

Section 53-21-130, MCA, (ten-day transfer statute). It was 

not until mid-June, 1983, that M.C. was actually transferred 
to Warm Springs. On June 29, 1983, M.C. filed a petition 

for habeas corpus alleging that his transfer from Pine Hills 

School to Warm Springs under the ten-day transfer statute 

was an unconstitutional violation of his right to due 

process. 

After a hearing on the matter, the court concluded 

that the habeas corpus remedy was proper and the parties 

stipulated to application of the Montana Uniform Declaratory 

Judgment Act. The District Court held the ten-day transfer 

statute was unconstitutional because the statute allowed 

M.C. to be transferred for ten days to Warm Springs without 

a prior due process proceeding finding serious mental 

illness. The District Court also held that the full due 

process protections of Title 53, Chapter 21 applied to M.C. 

From the order of the District Court the Department of 

Institutions appeals arguing the ten-day transfer statute is 

not violative of either the federal or state constitutional 

right to due process. 

The statute at issue in this case is Section 

53-21-130, MCA, which provides: 

"Transfer or commitment to mental health 

facility from other institutions. No 

person who is in the custody of the 

department for any purpose other than 

treatment of severe mental illness may be 

transferred or committed to a mental 

health facility for more than 10 days 

unless the transfer or commitment is 

effected according to the procedures set 

out in this part. However, proceedings 

for involuntary commitment may be 

commenced in the county of the mental 

health facility where the person is, in 

the county of the institution from which 

the person was transferred to the mental 

health facility, or in the county of the 

person's residence. Notice of a transfer 

shall be given immediately to any 

assigned counsel at the mental health 

facility and to the parents of minors, 
guardians, friends of respondent, or 

conservators, as the case may be." 

The Superintendent of Pine Hills utilized this statute to 

transfer M.C. to Warm Springs. Nothing in the record 

indicates the transfer was made because of an emergency 

situation or for any compelling reason. Also, the record 

does not show that M.C. was afforded any due process 

protections upon expiration of the ten day period. 

The extent of the procedural safeguards due an 

individual depends upon the extent to which he will suffer a 

grievous loss. Joint Anti-Fascist Refugee Committee v. 

McGrath (1951), 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. 

Thus, the court decides what process is due by balancing the 

individual's interest in avoiding the detriment against the 

state's interest in summary infliction of that detriment. 

Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 

L.Ed.2d 287. 

In holding the statute unconstitutional, the District 

Court relied upon Vitek v. Jones (1980), 445 U.S. 480, 100 

S.Ct. 1254, 63 L.Ed.2d 552. The decision in Vitek arose out 

of litigation concerning the 1974 conviction of Larry Jones 

on a charge of robbery. Jones was sentenced to a term of 

three to nine years at the Nebraska Penal and Correctional 

Complex in Lincoln. Eight months later, while in solitary 

confinement, Jones set his mattress on fire severely burning 

his hands. As a result of the incident, he was transferred 

pursuant to a provision of the Nebraska Code to the state 

mental hospital. The provision under which Jones was 

transferred provided that if a designated physician found 

that a prisoner suffered from a "mental disease or defect" 

that could not be given proper treatment in prison the 
Director of Correctional Services could transfer the 

prisoner to a mental hospital. Jones challenged the 

constitutionality of the transfer statute and the United 

States Supreme Court held that the due process clause 

guarantees a state prisoner certain procedural safeguards, 

including timely notice and an adversary hearing, before a 

state may subject him to the "grevious loss" resulting from 

civil commitment. Vitek, supra, 445 U.S. at 494. The 

Court, however, did not recognize as a matter of due process 

the right to appointed counsel at every commitment hearing. 

Vitek, supra, 445 U.S. at 497. In making its determination, 

the Court in Vitek employed the traditional due process 

balancing test, weighing the interests of the individual 

a.gainst those of the state. The test requires consideration 

of three factors: (1) the individual's interest affected by 

the state action; (2) the risk of erroneous deprivation of 

the interest; and (3) the government's interest in 

maintaining its fiscal and administrative objectives. 

Mathews v. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 

L.Ed.2d 18. 

Applying the traditional due process balancing test to 

the facts of this case indicates Section 53-21-130, MCA, is 

not unconstituional under either state or federal 

constitutional provisions. 

(1 The individual's interest affected by the state 

action. Under the provisions of the ten-day transfer 

statute a transfer to a mental institution cannot exceed ten 

days. At that time one of three things has to occur; first, 

the individual is returned to the original institution, or, 

second, the individual voluntarily admits himself to the 
mental institution, or third, the Department of Institutions 

may request a ninety-day involuntary commitment proceeding. 

In contrast, the Court in Vitek was faced with a situation 

in which a prisoner could possibly remain at a mental 

institution for the duration of his prison sentence without 

any procedural safeguards. Thus, Montana's ten-day transfer 

statute does not present the type of "grevious loss" 

contemplated by the Court in Vitek because procedural 

safeguards must be implemented after ten days. However, as 

previously stated, nothing in the record indicates M.C. was 

afforded any due process procedural safeguards upon the 

expiration of the ten-day period. 

(2) The risk of erroneous deprivation of the 

individual ' s interest. Under the provisions of the ten-day 

transfer statute there is a risk that an individual will be 

erroneously transferred for ten days to a mental 

institution. However, that fact must be weighed against 

the State's interest in maintaining the capability to 

transfer individuals in emergency situations. 

Significantly, at the end of ten days the individual is 

afforded procedural safeguards set forth in Title 53. 

(3) The state's interest in maintaining its fiscal and 

administrative objectives. Clearly, one of the purposes of 

the ten-day transfer statute is to segregate individuals who 

present an immediate danger to themselves or others. As 

such, the State's interest in transferring inmates for ten 

days is compelling. 

Under the statute at issue in Vitek, the State's 

foremost concern was the speed with which it could transfer 

mentally disturbed inmates to a mental institution. The 
Nebraska District Court had characterized this interest as 

one deserving "primacy." Miller v. Vitek (D. Neb. 1977), 

437 F.Supp 567. 

Similarly, Montana has a strong interest in speedy 

transfers of mentally disturbed individuals who may cause 

injury. Moreover, a speedy transfer of an inmate for ten 

days may be necessary for another reason: transferring a 

potentially dangerous, mentally ill inmate to a mental 

hospital may prevent a lawsuit against prison officials 

should a mentally disturbed inmate injure another inmate. 

See generally Fox v. Sullivan (5th Cir. 1976), 539 F.2d 

1065. 

A consideration of the three factors discussed above 

indicates the interests of the State outweigh the interests 

of the individual transferred pursuant to Section 53-21-130, 

MCA, as long as the procedural safeguards mandated by the 

statute are followed. 

We reverse the District Court's order declaring 

Section 53-21-130, MCA, unconstitutional, and affirm the 

District Court's issuance of the writ of habeas corpus. 

We concur: 

Chief Justice 
,** -a/ 

justices 6