NO. 94-047

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN THE MATTER OF G.J.P., III

Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge

presiding.

COUNSEL OF RECORD:

For Appellant:

Terry L. Seiffert, Billings, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General;

Carol Schmidt, Assistant Attorney General, Helena,

Montana

Dennis J. Paxinos, Yellowstone County Attorney,

Billings, Montana

Submitted on Briefs: July 7, 1994

Decided: September 12, 1994

Cl&k
Chief Justice J. A. Turnage delivered the Opinion of the Court.

G.J.P., III (G.P.), was involuntarily committedtothe Montana

State Hospital in August 1993. He appeals from the order of

commitment entered by the District Court for the Thirteenth

Judicial District, Yellowstone County. We affirm.

The issues are:

1 . Was G.P. illegally detained under g 53-21-129, MCA?

2 . Were G.P. 's procedural and constitutional rights otherwise

violated, mandating reversal of his commitment?

3 . Did the District Court err in failing to rule on the

petition for conservatorship?

On August 11, 1993, Dr. David Carlson, a Billings, Montana,

psychiatrist, contacted the Yellowstone County Attorney's Office

and the Billings Police Department requesting an emergency

detention of G.P. pursuant to 5 53-21-129, MCA. G.P., who was an

attorney, was detained and placed in the psychiatric unit at

Deaconess Hospital.

The next day, at the request of Dr. Carlson and Phillip

Oliver, a self-described friend of G.P., the Yellowstone County

Attorney's Office filed a petition asking that G.P. be involuntarily committed as a seriously mentally ill person. In his written

request for commitment, Oliver stated:

I have known [G.P.] for approximately six years.

Approximately four years ago he called upon my help to

aid him in his drinking problem. . . . [Alfter several

months [G-P.] resumed drinking and I had little contact

with him.

2
. . .

In November, 1991, after [G.P.] had been charged with

domestic abuse . . . he contacted me indicating that he

was thinking of killing himself. He was asking for help

and I suggested that he be committed to Deaconess Medical

Center. . . . That day [G.P.] was [voluntarily] admitted

to Deaconess Medical Center where he spent approximately

4 or 5 days before being transferred to the VA Hospital

in Sheridan, Wyoming for alcohol treatment. He was

released on Christmas Eve of 1991 to the best of my

knowledge.

. . .

. . . [I]n the spring of 1993, [G.P.] visited my office

indicating that he had started drinking again, that he

had another problem with domestic abuse and with the

police and had been involuntarily committed to Deaconess.

. . .

Subsequent to that time my partners and I have received

various phone calls from potential clients and other

attorneys regarding [G.P.]. Several of these people have

questioned whether [G.P.] would perhaps kill himself.

. . .

I received calls from Judge Stewart, of City Court, and

Judge Fillner, 13th Judicial Court Judge, regarding

[G.P.]'s erratic behavior in court and his inability to

represent clients in an effective and logical manner.

The phone calls have all been this week. In addition, I

have'talked to several local attorneys who have expressed

concern about [G.P.]'s potential danger to himself and to

others. . . .

In all of my many conversations with [G.P.], I have

noted in the past his discussions about doing harm to

others and to himself and what his mental state was at

that time. While he has not told me directly that he

wishes to harm himself or others recently, I noted in my

discussions with him, that he is of the same frame of

mind today and has the same attitude and exhibits the

same characteristics as during those times when I heard

him say that he was going to do himself in.

In his written request for commitment, Dr. Carlson stated

there was an immediate need to detain and hospitalize G.P. because

3
of ttno insight, very agitated, suicide rife." He further stated

G.P. had a "history of depression with suicide ideation & behavior." Dr. Carlson said he had received multiple calls regarding

G.P.'s behavior and risk of suicide, and, since his hospitalization

the day before, G.P. had been "uncooperative & very psychotic."

At the initial hearing on August 13, 1993, the court advised

G.P. of his rights and appointed counsel, a "next friend," and a

professional person pursuant to 3 53-21-122(2), MCA. The court

appointed Dr. Carlson as the professional person and stated its

willingness to appoint a second professional person, to be selected

by G.P.

G.P. asked that he be released, arguing there was no probable

cause for his emergency detention. He testified that, during the

day he had been hospitalized, he had demonstrated "in many, many

ways" that if he were a danger to himself or others he could have

"hung myself or inflicted bodily harm upon myself or on other

individuals there." He also gave a lengthy, rambling monologue

about his plans to travel to Arkansas to go fishing with his former

boss: to speak to the national governors' conference in Tulsa,

Oklahoma, about his proposed charitable organization, which would

pay the national debt through citizen contributions into a

stovepipe hat; to make a trip to Washington, D.C., to meet with

President and Mrs. Clinton; and to be present for his daughter's

eighteenth birthday in Arkansas. The State asked that G.P.'s

hospitalization be continued until the commitment hearing. The

4
court granted that request, basing its ruling on the documents

attached to the petition and on G.P.'s own testimony.

A hearing on the petition for involuntary commitment was held

on August 18, 1993. The court heard testimony by several friends

of G.P., by Dr. Carlson, and by G.P. himself. At G.P.'s request,

the court also viewed writings which G.P. had drafted in magic

marker on the walls of his hospital room. G.P. explained the

writings, some of which he stated were in code, at length. G.P.

chose not to present testimony by a second professional person. At

the end of the hearing, the court ordered that G.P. be committed to

the Montana State Hospital for a period of up to three months.

Issue 1

Was G.P. illegally detained under § 53-21-129, MCA?

Section 53-21-129, MCA, provides:

Emergency situation -- petition -- detention. (1) When an

emergency situation exists, a peace officer may take any

person who appears to be seriously mentally ill and as a

result of serious mental illness to be a danger to others

or to himself into custody only for sufficient time to

contact a professional person for emergency evaluation.

If possible, a professional person should be called prior

to taking the person into custody.

(2) If the professional person agrees that the

person detained appears to be seriously mentally ill and

that an emergency situation exists, then the person may

be detained and treated until the next regular business

day. At that time, the professional person shall release

the detained person or file his findings with the county

attorney who, if he determines probable cause to exist,

shall file the petition provided for in 53-21-121through

53-21-126 in the county of the respondent?s residence. In

either case, the professional person shall file a report

with the court explaining his actions.

5
G.P. maintains no emergency situation existed when he was

first detained, because he had not at that time exhibited any overt

acts, threats, or violence of any sort. He cites Matter of Shennum

(19841, 210 Mont. 442, 684 P.2d 1073.

In Shennum, Alan Shennum, armed with a loaded semiautomatic

pistol, seated himself in the public section of the chambers of the

Missoula City Council just before a scheduled Council meeting.

After he was discovered, apprehended, questioned, and relieved of

his weapon by local police, he was released. The next morning,

Shennum went to the police station to pick up his gun. He was

detained there and examined by a Missoula psychiatrist. Later that

day r he was transferred to the mental health unit of a local

hospital. A petition for commitment in the state mental hospital

was filed the following day.

This Court held that the record did not demonstrate a finding

by the psychiatrist of an emergency situation justifying Shennum's

detainment at the police station, and reversed his commitment.

Shennum, 684 P.2d at 1077. Noting that it was not clear whether

Shennum was still hospitalized when the opinion was issued, this

Court ordered that, if he was, his release should be pursued "with

all deliberate speed." Shennum, 684 P.2d at 1080.

The facts in Shennum differ from those in the present case in

important respects. Shennum was originally detained under § 53-21-

129 Cl), MCA, without the recommendation of a professional person.

Unlike Shennum, G.P. was detained at the request of a professional

6
person, Dr. Carlson. Under 5 53-21-129(2), MCA, the determination

of whether a person appears to be seriously mentally ill and an

emergency situation exists is left to the professional person,

whose request for emergency detainment is sufficient for detainment

until the next business day.

The dissent expresses concern about the propriety of Dr.

Carlson's determinations that G.P. was seriously mentally ill and

that an emergency situation existed. However, under 5 53-21-

129(2), MCA, the professional person's request for emergency

detainment is sufficient for detainment until the next business

day. The concerns expressed by the dissent might properly be

raised in an action against the professional person, but not in an

action challenging a commitment, such as this action.

Dr. Carlson testified at the hearing on August 18 that he

treated G.P. during and following his hospitalization three months

earlier. He said G.P. suffered from manic depressiveness, a

cyclical illness in which, after individuals have a "highV1 which is

not treated, they will Vrash8* into a severe depression. He

further testified that, in the days before he requested G.P.'s

emergency detainment, he had received many phone calls from persons

concerned about G.P.' s mental health, including another therapist

treating G.P. He stated that, at G.P.'s insistence, he met with

G.P. in a parking lot on August 10 so that G.P. could give him

copies of press releases relating to his charitable organization.

G.P. agreed to an appointment at Dr. Carlson's office the following

7
day. Dr. Carlson testified that G.P.'s history indicated that he

would become severely depressed when he "crashed" from his manic

high. Dr. Carlson was aware of all this before he filed the

original request for G.P. Is emergency detainment. G.P.'s claim

that there was no basis for Dr. Carlson to request his emergency

detainment is disproved by the record.

Further, at the time he filed his notice of appeal, G.P. was

no longer detained as a result of this proceeding. The remedy

provided in Shennum is therefore inapplicable.

On August 12, the next business day following G.P.'s initial

detainment, the county attorney filed a petition for commitment.

The requirements of § 53-21-129(2), MCA, were thus met. We point

out that the judgment of the county attorney and of the district

court are built-in checks upon the discretion of a professional

personal to restrain a person under 5 53-Zl-129(2), MCA, for more

than one day.

G.P. also contends his objection to his continued detainment,

made at his initial appearance before the court, should have been

granted. In its order continuing G.P.'s detainment, the District

Court stated that, based on the documents attached to the petition

for involuntary commitment and on G.P. 's own testimony at the

initial hearing, it found probable cause to detain him for his own

safety pending the commitment hearing five days later. After

reviewing the record, including G.P.'s own testimony, we conclude

the court did not err in so ruling.

8
Issue 2

Were G.P. Is procedural and constitutional rights otherwise

violated, mandating reversal of his commitment?

G.P. groups a number of claims under this issue. We first

address his argument that Phillip Oliver did not have the requisite

direct knowledge of the facts to make a request for commitment with

the county attorney pursuant to § 53-21-121, MCA.

Oliver admitted on cross-examination that he did not have

personal knowledge of any present threats or suicidal gestures on

the part of G-P. However, in his petition for commitment, he

stated he had personal knowledge that G.P. was "of the same frame

of mind today and has the same attitude and exhibits the same

characteristics as during those times [in the past] when I heard

him say that he was going to do himself in.'* Oliver's overall

knowledge of the facts concerning G.P. 's history and illness was

demonstrated in his testimony and request for involuntary commitment. We conclude he had sufficient personal knowledge of the

facts to make a joint request for commitment, along with Dr.

Carlson, to the county attorney.

G.P. next claims his evaluation by Dr. Carlson pursuant to

5 53-21-129(2), MCA, improperly occurred prior to his initial

appearance before the District Court, instead of after the hearing

and after he was advised of his rights. He states the evaluation

was completed prior to the court granting Dr. Carlson the authority

to conduct the evaluation. Citing § 53-21-141(l), MCA, he also

9
complains that Dr. Carlson did not advise him that the interview

was to be used for the evaluation and not for treatment.

The court accepted into evidence two letters written by Dr.

Carlson. The first was written on August 12, the day before G.P.'s

initial hearing. This is the letter of which G.P. here complains.

However, G.P. has identified nothing in Dr. Carlson's August 12

letter which refers to privileged communication with G.P.

Dr. Carlson testified on August 18 that he tried to talk with

G.P. on at least five different occasions during G.P.'s hospitalization, but that G.P. was either too aggressive or not lVrousable'V

from sleep on most of those occasions. "We really felt that there

was very little accomplished by a subsequent interview, and we

would just let him sleep so we would not have to medicate him

further, put him in restraints."

Dr. Carlson's letter of August 17, 1993, which was the second

letter introduced into evidence, is germane to many of G.P.'s other

complaints concerning his treatment. This letter was written after

G.P.'s initial hearing and after G.P. was fully advised of his

rights.

G.P. claims he was "continually detained in seclusion and in

isolation as well as maintained in restraints" in violation of

5 53-21-146, MCA. He alleges that he was denied medical care for

broken ribs in violation of 5 53-21-142(11), MCA; denied the right

of telephone COmmUniCatiOnin violation of 5 53-21-142(3), MCA; and

10
administered medication within twenty-four hours before the

hearing, despite his objection, in violation of § 53-21-115, MCA.

In his August 17 letter, Dr. Carlson stated:

[G.P.] has continued to demonstrate extremely severe

symptoms of mental illness. In fact, if anything,

[G.P.]'s illness has worsened considerably over the last

few days.

[G.P.] has remained on the closed unit at the

Psychiatric Center. He has spent the majority of his

time being secluded to his room because of his severely

manic behaviors. . . . [G-P.] has been extremely destructive of hospital property. This includes an episode

shortly after admission where he wrote at great lengths

with magic marker filling one of the walls of his

hospital room with rambling, grandiose and delusional

content. . . . On the morning of 8/12 he had a noose

hanging from an air screen in his hospital room. He, the

following day, hung a bed sheet from this noose claiming

that it was an effigy but did not identify who this was

supposed to be. . . . We have had to limit his telephone

calls because of complaints of acquaintances about the

inappropriateness of his calls, both in terms of time of

day as well as duration and content.

On 8/14 [G.P.] became very agitated on the telephone. He began banging the telephone on a counter and

then began indiscriminately waving the telephone

around[.] . . . When staff attempted to intervene, he

managed to get one of the nurses in a head lock, injuring

his neck. He then proceeded to kick at and kick another

employee. He has attempted to bite employees. He has

spit on employees and thrown urine in urinals at employees. [G.P.] is well aware of his HIV status[.] . . .

[G.P.] has essentially been in restraints about 90%

of the time since last Saturday's incident. During

attempts to take him out of restraints, although he is

initially agreeable and calm, he rapidly becomes very

agitated and assaultive again to staff. [G-P.] has

removed himself from restraints on three occasions

including an episode today where he cut himself out of

restraints using a piece of metal again obtained by

tearing up his mattress.

[G.P.] has completely refused treatment at our

hospital. . . . He has been ordered medication against

11
his will because of his obviously dangerous behaviors.

This medication has had to be administered intramuscularly in almost every occasion.

[G-P.] shows no insight into his illness. He is

unwilling to take Lithium. . . . When he is not sedated,

he is almost unmanageable at its occlusion.

. . .

[G.P.] is truly a very ill individual. He has

severe characterologic symptoms, but at this time he is

obviously very manic and quite unable to care for himself

and his affairs. . . . He has made it almost impossible

to provide him with care in this setting. To that end,

I think [G.P]'s prognosis is generally very poor, but he

is deserving of the effort to provide him with treatment.

The right to be free from physical restraint and isolation

under s 53-21-146, MCA, is not absolute. It exists "except for

emergency situations." Dr. Carlson's letter explains generally the

use of isolation and restraints to control G.P.'s violent and

aggressive behavior toward hospital staff and patients. In his

allegations, G.P. has not identified any specific instance in which

he was restrained or isolated in violation of his rights.

Dr. Carlson testified that G.P. was not amenable to being

transported to the X-ray room of the hospital to have his ribs Xrayed. Dr. Carlson further testified that the hospital does not

provide medical treatment for broken ribs other than X-raying them

to determine whether they are indeed broken.

Patients admitted to a mental health facility have the right

to llreasonable'V access to telephone communications. Section 53-21-

142(3), MCA. G.P. has not established that he was denied this

right. Dr. Carlson testified that G.P. was not denied all

12
telephone access. He was limited as to time and number of phone

calls, so that he could make no calls after midnight and other

patients could also use the phone.

Patients involuntarily detained for serious mental illness

have a right to be free from "any but lifesaving medication" for up

to twenty-four hours prior to a hearing. Section 53-21-115, MCA.

Dr. Carlson testified that he determined G.P.'s behavior was so

agitated that he was a risk to himself and a threat to the safety

of others. The District Court found that the medication given to

G.P. prior to the hearing was lifesaving. We conclude that finding

is supported by substantial credible evidence.

None of the rights claimed by G.P. are absolute. G.P. has not

demonstrated any restrictions on his rights other than those

necessary for his treatment, evaluation, and care. Further, G.P.

has not established that reversal of his commitment would be a

proper remedy for any such denial or restriction of his rights.

After reviewing the record, we conclude that G.P. has not established that his commitment should be reversed due to violations of

his procedural and constitutional rights.

Issue 3

Did the District Court err in failing to rule on the petition

for conservatorship?

On August 26, 1993, G.P., through his counsel, filed a

petition asking the District Court, in the alternative, to (1)

direct his counsel how to proceed to protect G.P.'s assets,

13
practice, and clients, or (2) appoint a conservator of G.P.'s

estate, or (3) enter "such other appropriate orders for the

protection of [G.P.]'s assets and for the protection of [G.P.]'s

clients." In response to this request, the court entered an order

on September 3, 1993, authorizing G.P. Is counsel to secure G.P.'s

mail. G.P. was apparently discharged from the Montana State

Hospital on September 15, 1993.

G.P. argues that the court's "failure to rule on" his August

26 motion left his clients in a state of limbo of not having an

attorney to meet their legal needs. However, he has not described

any specific problems incurred by any of his clients. Furthermore,

his motion was set forth in the alternative. The court granted

relief in the form of authorizing G.P.'s counsel to secure G.P.'s

mail. The allegation that there was a "failure to rule" on the

motion on the part of the District Court is simply not true.

Suggestions for procedures to handle the caseloads of attorneys who

become suddenly unavailable to their clients due to mental illness

or other reasons might better be raised in another manner or to

another forum, such as the State Bar of Montana. We hold that the

District Court did not err as alleged under Issue 3.

We affirm the order of commitment entered by the District

Court.
We corlcllr :

15
Justice Karla M. Gray, dissenting.

I respectfully dissent from the Court's opinion on the issue

of whether G.P. was illegally detained under § 53-21-129, MCA.

When controlling statutes are applied, it is clear that the Court's

conclusion that G.P. was not illegally detained is incorrect.

G.P. originally was detained pursuant to § 53-21-129, MCA,

which provides for the extraordinary procedure of civilly detaining

a Montana citizen prior to any judicial involvement. The statute

provides in pertinent part:

Emergency situation -- petition -- detention.

(1) When an emergency situation exists, a peace officer

may take any person who appears to be seriously mentally

ill and as a result of serious mental illness to be a

danger to others or to himself into custody only for

sufficient time to contact a professional person for

emergency evaluation. If possible, a professional person

should be called prior to taking the person into custody.

(2) If the professional person agrees that the person

detained appears to be seriously mentally ill and that an

emergency situation exists, then the person may be

detained and treated until the next regular business day.

Section 53-21-129, MCA. It is clear that the operative phrases are

"seriously mentally ill" and "emergency situation;" it is equally

clear that both elements must be met before a person may be

detained pursuant to § 53-21-129, MCA.

"Seriously mentally ill" is statutorily defined to mean:

suffering from a mental disorder which has resulted in

self-inflicted injury or injury to others x the imminent

threat of injury a which has deprived the person

afflicted of the ability to protect the person's life or

health. For this purpose, injury means physical injury.

A person may not be involuntarily committed to a mental

health facility or detained for evaluation and treatment

because the person is . . . suffering from a mental

disorder unless the condition causes the person to be

seriously mentally ill within the meaning of this part.

16
Section 53-21-102(15), MCA (emphasis added). "Emergency situation"

is statutorily defined to mean "a situation in which any person is

in imminent danger of death or serious bodily harm from the

activity of a person who appears to be seriously mentally ill."

Section 53-Zl-102(4), MCA.

Nothing of record relied on by the Court establishes that the

necessary circumstances existed here to support the emergency

detention of G.P. As a result, I conclude that the detention was

not legal. I begin with the assumption, seemingly established by

the record, that G.P. suffers from a mental disorder. Section 53-

21-102(15), MCA, makes it clear that suffering from such a disorder

is merely the threshold inquiry in determining whether a person is

seriously mentally ill: it is not sufficient to detain a person

under § 53-21-129, MCA, or to involuntarily commit that person

pursuant to 55 53-21-121 through 53-21-126, MCA.

The first question before the Court, then, must be whether

G.P. met any of the disjunctive criteria set forth in the statutory

definition of "seriously mentally ill." In this regard, only the

testimony of Dr. David Carlson is relevant, because he is the only

"professional person" involved in this matter and is the person

whose contact with the Billings police resulted in G.P.'s emergency

detention. Phillip Oliver's written support for the involuntary

commitment of G.P., set out at length in the Court's opinion, is

totally irrelevant to this issue: Mr. Oliver, an attorney and

friend of G.P., is indisputably not a "professional person" for

purposes of the emergency detention statute.

The Court cites the following as the totality of Dr. Carlson's

17
testimony about G.P. 's pre-detention situation:

1. Dr. Carlson had treated G.P. following an earlier

hospitalization three months earlier.

2. G.P. had a "history of depression with suicide ideation and

behavior."

3. G.P. suffers from manic depressiveness.

4 . In the days before the emergency detention, Dr. Carlson

received phone calls from persons concerned about G.P.'s mental

health.

5. In Dr. Carlson's opinion, G.P. was in a manic high in the

days immediately preceding the detention, and would become severely

depressed when he "crashed" from that high.

6 . It was Dr. Carlson's opinion that G.P. had "no insight,

very agitated, suicide rife."

While this testimony may well establish that G.P. has a history of,

and suffers from, a mental disorder, it does not establish that

G.P. was seriously mentally ill at the time of the detention as

required by statute. The testimony does not show that G.P.'s

mental disorder has resulted in injury to himself or others or the

imminent threat of such injury: nor does it show that the mental

disorder has deprived G.P. of the ability to protect his own life

or health. See 5 53-21-102(15), MCA.

Dr. Carlson's testimony also does not establish the existence

of an "emergency situation" as the legislature defined it in 5 53-

21-102(4), MCA. Nothing in that testimony shows that G.P. or

another person was in "imminent danger" of death or serious bodily

harm from G.P.'s activities.

While I agree with the Court's statement that a F, 53-21-129,

MCA, determination of "whether an emergency situation exists is

left to the professional person, II I agree only in the context of

applicable statutory definitions. The Court apparently intends to

allow "professional persons" to define both "seriously mentally

ill" and "emergency situation" as the mood strikes them and without

18
regard to statutory definitions. The result of the Court's

decision is exactly contrary to the legislature's carefully stated

intent that a person may not be either detained under the emergency

detention statute or involuntarily committed on the basis of a

mental disorder unless that disorder causes the person to be

seriously mentally ill. Moreover, the Court's decision results in

an unprecedented and unjustified expansion of the State's ability

to detain Montana citizens who suffer from mental disorders but who

have not been shown to be a danger to themselves or others. I

cannot agree that these results are legally correct or otherwise

appropriate. I dissent.

i

Justice William E. Hunt, Sr., dissenting:

I join in the dissent of Justice Gray.

Justxce

19
September 12, 1994

CERTIFICATE OF SERVICE

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

following named:

Terry L. Seiffert

Attorney at Law

P. 0. Box 31181

Billings, MT 59107

Dennis J. Paxinos

Yellowstone County Attorney

P.O. Box 35025

Billings, MT 59107

Hon. Joseph P. Mazurek, Attorney General

Carol Schmidt, Assistant

Justice Building

Helena, MT 59620

EC1 SMITH

CL.ERK OF THE SUPREME COURT

STATB OF MONTANA

BY ”

Deputy u