NO. 93-187

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

IN THE MATTER OF

GUS E. MORLOCK,

Respondent.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Lonnie J. Olson,

Billings, Montana

Montana Advocacy Program,

For Respondent:

Jim Obie, Chief Legal Counsel, Corrections

and Human Services, Helena, Montana

Filed:

Submitted on Briefs: August 26, 1993

Decided: November 15, 1993
Justice Terry N. Trieweiler delivered the opinion of the Court.

Gus E. Morlock appeals from an order of the District Court for

the Fifth Judicial District in Jefferson County, Montana, which

recommitted him to the Montana Developmental Center. Morlock seeks

reversal of the order of recommitment based on his assertion that

the Department of Corrections filed an untimely petition for

recommitment under § 53-20-128, MCA. We reverse.

The dispositive issue on appeal is whether the petition for

recommitment was filed in an untimely manner under 3 53-20-128,

MCA.

On July 31, 1991, the District Court for the Second Judicial

District, Silver Bow County, committed Gus E. Morlock to the

Montana Developmental Center for a period of eight months.

Pursuant to the provisions of the District Court order,

Morlock's commitment to the Montana Developmental Center expired on

March 31, 1992. No petition for recommitment was filed before the

expiration of Morlock's commitment to the Center. On October 2,

1992, six months after the expiration of the order of commitment,

the Department of Corrections filed a petition for recommitment of

Morlock and properly served notice of a right to a hearing on the

petition.

On February 10, 1993, a hearing pursuant to the petition was

held in the District Court for the Fifth Judicial District,

Jefferson County. Prior to the hearing, Morlock filed an oral

motion with the court to dismiss the action for recommitment based

2
on his assertion that the petition for recommitment was filed in an

untimely manner under 5 53-20-128, MCA.

The District Court heard arguments from both parties. The

Department conceded that the petition for recommitment was untimely

under § 53-20-128, MCA. However, the court denied Morlock's motion

to dismiss the action and proceeded with the hearing. O n

February 28, 1993, the District Court entered its findings of fact,

conclusions of law and final order, which recommitted Morlock to

the Montana Developmental Center for a period of twelve months from

October 2, 1992. It is from this order of recommitment that

Morlock appeals.

Morlock asserts that the Department of Corrections did not

file the petition for his recommitment within the time period

specified in § 53-20-128, MCA, and that failure to follow the

statute mandates reversal of the District Court's order of

recommitment.

Section 53-20-128(l), MCA, provides:

If the qualified mental retardation professional in

charge of the resident determines that the admission to

the residential facility should continue beyond the

period specified in the court order, he shall, at least

15 davs before the end of the period set out in the court

order, send written notice of his recommendation and

request for renewal of the order to the court that issued

the order, the resident, his parents or guardian, the

next of kin, if known, the attorney who most recently

represented the resident, if any, and the responsible

person appointed by the court, if any. The

recommendation and request must be accompanied by a

written report describing the habilitation plan that has

been undertaken for the resident and the future

habilitation plan that is anticipated by the qualified

mental retardation professional. [Emphasis added].

3
This Court has held that Montana's civil commitment laws are

to be strictly followed. MentalHea1thofS.J. (1988), 231 Mont. 353,

355, 753 P.2d 319, 320 (citing IntheMatterofZXF. (1987), 229 Mont.

473, 747 P.2d 1356). We conclude that the filing requirement of

5 53-20-128, MCA, is mandatory. The statute allows a petition for

recommitment only if renewal of the commitment order is requested

at least 15 days before the expiration of the commitment order,

The Department of Corrections admits that it did not comply

with the 15-day requirement set forth in 5 53-20-128, MCA, when it

filed its petition to recommit Morlock to the Montana Developmental

Center. It filed the petition for Morlock's recommitment six

months after his commitment order expired.

Because the Department did not comply with the statutory

filing requirement of § 53-20-128, MCA, the District Court was

without authority to recommit Morlock and its order of recommitment

is reversed.

/

J stice

We concur:

November 15, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Lonnie J. Olson, Esq.

Mental Disabilities Board of Visitors

P.O. Box 177

Warm Springs, MT 59756

Jim Obie, Chief Legal Counsel

Corrections & Human Services

1539-11th Ave.

Helena, MT 59620-1310

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA