DA 07-0023 

### IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 299

IN THE MATTER OF THE MENTAL HEALTH OF E.T., Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DI 06-114 C Honorable Stewart E. Stadler, Presiding Judge

COUNSEL OF RECORD: For Appellant: Christina Holte Larsen, Nick Aemi segger, Jr., Public Defenders; Kalispell, Montana For Appellee: Hon. Mike McGrath, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney; Katie F. Schulz, Deputy County Attorney; Kalispell, Montana

Submitted on Briefs: October 31, 2007 Decided: August 20, 2008

Filed:

__________________________________________ ClerkJustice W. William Leaphart delive red the Opinion of the Court. ¶1 E.T. appeals the District Court’s rulin g which denied him the opportunity to present evidence and testimony at his initial a ppearance to challenge the probable cause for the County’s petition to have him involuntarily committed. We affirm. ¶2 We restate the issue as follows: ¶3 Did the District Court err by denying E.T. the opportunity to present evidence and testimony on the issue of probabl e cause during his initial appear ance before the District

Court?

BACKGROUND ¶4 E.T. was diagnosed with bi-polar disorde r. Recently, his friends noticed strange changes in his behavior- E.T. began wearing a pistol holster, and making threats against an unidentified person. His fri ends were concerned that he posed a danger to himself or others, so they called the sher iff’s office. The sheriff’s officers brought E.T. to the ER

for immediate evaluation. ¶5 E.T. cooperated fully with the evalua tion. The mental health professional (“MHP”) determined that E.T. needed to be de tained. The County Attorney filed a petition for his involuntary commitment and reque sted that E.T. be detained pending the hearing. After reviewing the petition, the Di strict Court determined that probable cause existed to support the commitm ent, and scheduled E.T.’s in itial appearance. The court also found probable cause to detain E.T. pending the § 53-21-126, MCA hearing on the merits of the petition (the “53-21-126, MCA hearing”).

2¶6 At the initial appearance, E.T. objected to the court’s finding of probable cause, and requested a probable cause hearing. The c ourt noted E.T.’s objection, but refused to hold a hearing on the issue of probable cause. The court expl ained that it did not believe any statutory provision existed which gave E.T. the right to a hearing on probable cause. However, the court stated that E.T. would be able to present evidence and testimony at the § 53-21-126, MCA hearing, which was schedu led to occur four days later. E.T. was held at Pathways Trea tment Center for the next four da ys, pending the upcoming hearing. Before the § 53-21-126, MCA hearing occurred, the County dismissed its petition for E.T.’s involuntary commitment.

STANDARD OF REVIEW ¶7 Whether a person has been denied due proce ss of law presents a constitutional question of law; our review of such questions is plenary. In re Mental Health of K.G.F. , 2001 MT 140, ¶ 17, 306 Mont. 1, ¶ 17, 29 P.3d 485, ¶ 17.

DISCUSSION Did the District Court err by denying E.T. the opportuni ty to present evidence and testimony on the issue of probable cause during his initial appearance before the

District Court? ¶8 E.T. argues that the existing statutory sc heme provides a right to present evidence and testimony at an initial appearance before th e District Court, in order to challenge the District Court’s finding of probable cause. He reaches this conclusion by reading § 53- 21-122(2), MCA, in pari materia with § 53-21-115(2), MCA:

3[R]eading § 53-21-122(2) with § 53-21-115(2) demands . . . that a respondent in an involuntary commitm ent be given the right to present evidence and witnesses at any proceeding, including his initial appearance: the plain language of § 53-21-122(2) iden tifies the initial appearance as the appropriate time for a respondent to object to probable cause, while the plain language of § 53-21-115(2) guarantees a respondent the right to present evidence and witne sses in any proceeding. App. Br. 7-8 (Mar. 27, 2007). ¶9 In response, the State argues that the plain language of § 53-21-122(2), MCA, allows E.T. to object to the finding of proba ble cause, but does not give him the right to present evidence at the initial appearance. The State main tains that § 53-21-115(2), MCA, which permits persons to present evid ence and witnesses at “any hearing,” does not mean they have the right to present such evidence at “every” hearing. The State further argues that the purpose of § 53-21-12 2(2), MCA, is to give E.T. notice of his constitutional rights, not to allow him to adduc e evidence. Finally, even if E.T. were allowed to present evidence at the initial hear ing, M. R. Evid. 4 01 (the rule requiring

evidence to be relevant in order to be ad missible) would prohibit him from introducing

evidence on matters not in issu e. Section 53-21-122, MCA, requires the judge to make a determination on probable cause before the initial appearance. Thus, the State argues, probable cause is not “in issu e” at the initial appearance. ¶10 A. Does the existing statutory scheme pr ovide persons with th e right to challenge probable cause by presenting evidence and testimony at th e § 53-21-122(2), MCA initial appearance? ¶11 1. Does § 53-21-115, MCA, require that persons be able to present evidence and testimony to challenge probable cause at their § 53-21-122, MCA initial appearance?

4¶12 Section 53-21-115(2), MCA, provides persons involuntar ily detained or against whom a petition is filed under Title 53, Chapter 21, Part 1 with “the right in any hearing to be present, to offer evidence, and to pr esent witnesses in any proceeding concerning the person.” A person’s first appearance before the court under this part is governed by § 53-21-122, MCA, and is referred to throughout the part as both an “appearance” and a “hearing.” Sections 53-21-122(2), 123, MCA. A mechanical reading of the two statutes in pari materia would allow the person to be present, to offer evidence, and to present witnesses at the § 53-21-122 (2), MCA initial appearance. ¶13 However, we must construe a statute as a whole to avoid an absurd result. Infinity

Ins. Co. v. Dodson , 2000 MT 287, ¶ 46, 302 Mont . 209, ¶ 46, 14 P.3d 487, ¶ 46. The interpretation urged by E.T. is inconsistent with other provisions contained within the statutory scheme. For example, the statute explicitly instructs the judge to make the determination regarding probable cause before the person ever appears in court: “The judge shall consider th e petition. If the judge finds no probable cause, the petition must be dismissed. If the judge finds probable cau se . . . the respondent must be brought before the court with the respondent’s coun sel. . . . The respondent may at this appearance object to the find ing of probable cause for fili ng the petition.” Section 53-21- 122(2), MCA. A finding of probable cause is a necessary precedent to the person’s initial appearance in court. ¶14 In sum, it is unclear from the face of the statute whether the in itial appearance is a hearing at which the person may present evid ence to challenge the finding of probable cause. The competing statutory interpretations offered by the parties are both plausible.

5The question is a close one, and cannot be an swered on the face of the statute. The ambiguity in the statute forc es us to turn to the part’s legislative history. Infinity Ins. Co. , ¶ 46 (“If the plain words of a statute are ambi guous, however, the next step in judicial interpretation of the statute is to dete rmine the intent of the legislature.”). ¶15 b. Legislative history of Title 53, Chapter 21, Part 1, MCA ¶16 Part 1 of Chapter 21, Title 53, MCA, which governs involunt ary commitments, is a complicated statutory scheme which has been amended multip le times since its enactment in 1975. We discuss only those amendments relevant to the case at bar. ¶17 The legislative history of § 38-1305, R.C.M. 1947 (1975) (the predecessor to § 53- 21-122, MCA) indicates that the Legislature intended courts to make the probable cause determination without a hearing. The first procedural safeguard in the statute, then as today, required the court to determine whether the petiti on is supported by probable cause. However, as originally enacted, this de termination was made by the court “with or without a hearing.” Section 38-1305(3), R.C.M. 1947 (1975). In 1977, the Legislature struck this provision and replaced it with th e following: “[The judge] shall consider the petition and if he finds no probable cause it shall be dismissed. If the judge finds probable cause, counsel shall immediately be appointed for the respondent and the respondent shall be brought forthwith before the court with his counsel.” Section 38- 1305(3)(b), R.C.M. 1947 (1977). Under the revised section, the judge makes the probable cause determination without a hearing, before the person’s initial appearance. ¶18 In 1977, the Legislature adde d a new provision allowing courts to detain persons in treatment facilities pending the § 53-21-126, MCA hearing, as long as probable cause

6exists for the detention. Section 38-1305(5 ), R.C.M. 1947 (1977). Persons detained under this section have the right to request an immediate hearing to challenge the probable cause for the detention. Secti on 38-1305(5), R.C.M. 1947 (1977) (codified today at § 53-32-124, MCA). This new pr ovision was essential in light of the contemporaneous amendment which deleted the provision providing for probable cause hearings. Absent this provis ion, a person could be detained for as many as five days without an opport unity to challenge the probable caus e for his detentio n – a result which might violate both the federal and state due pr ocess clauses. By cr eating a right to an immediate detention hearing, the Legislature avoided any du e process concerns triggered by eliminating the probable cause hear ing at the initial appearance stage. ¶19 In 1997, the Legislature revised § 53-21- 122, MCA to prohibit the § 53-21-126, MCA hearing from being held the same day as the pe rson’s initial appearance before the court. Several advocacy groups had expressed concern that the existing statutory scheme did not give the person ample time to prepar e for the § 53-21-126, MCA hearing. Mont. Sen. Health & Welfare Comm., An Act Relating to Mental Health: Hearing on H.B. 502 , 55th Leg., Reg. Sess. Ex. 2 (Mar. 14, 1997). A person responding to an involuntary commitment petition, they argued , should be given more time to consult with his counsel and gather witnesses an d evidence. Advocates were also concerned that in some cases the person might need more tim e to obtain appropr iate clothing and medication, so he could participate in the proceedings with di gnity. In response, the Legislature amended § 53-21-122, MCA, to read, in relevant part:

7The judge shall appoint a professional person and a friend of respondent and set a date and time for the hearing on the petition that may not be on the same day as the initial appearance and that may not exceed 5 days, including weekends and holidays, unle ss the fifth day falls upon a weekend or holiday and unless additional tim e is requested on behalf of the respondent. Section 53-21-122(2), MCA (1997) (emphasi s added); Mont. Sen. Health & Welfare Comm., An Act Relating to Mental He alth: Hearing on H.B. 502 , 55th Leg., Reg. Sess. Ex. 8 (Mar. 21, 1997). ¶20 This amendment provided an additional pr ocedural safeguard to protect the due process rights of persons under this part. By prohibiting c ourts from reaching the merits of the petition on the same day of a person’s initial appearance, the Legislature ensured that the person had adequate notice of the petition. This amendment evinces a clear legislative intent that the initia l appearance be held on a se parate day from hearings going to the merits of the petition. If the court were to hold a h earing on the probable cause for the petition, the evidence and testimony presente d at that hearing would inevitably go to the merits of the petition itself. The Legislatur e explicitly rejected such a result, in order to ensure that persons had th e notice that due process dema nds in such proceedings. Thus, this suggests that the Legislature di d not intend for pers ons to challenge the probable cause for the commitment un til the § 53-21-126, MCA hearing. ¶21 In sum, the legislative history of §§ 53 -21-122 and 124, MCA, reveals that the Legislature intentionally amended the statutor y scheme to remove the right to a probable cause hearing from the initial appearance stage of the pr oceedings. Instead, the Legislature provided persons w ho were detained by the cour t for evaluation and treatment

8pending the § 53-21- 126, MCA hearing on the petition w ith the right to an immediate detention hearing under § 53-21-124, MCA. This revised statutory scheme provides the persons most at risk of depr ivation of liberty with the opportunity to challenge the probable cause for their detention. The Legi slature also expressed a clear intent that courts should not reach the merits of the pe tition on the same day that the person appears

before the court for th e first time. ¶22 Thus, we conclude that the statutory sc heme does not provid e a person with the right to challenge probable cause by pres enting evidence and testimony at his initial appearance before the court. Our conclusion , drawn from the legislative history of the statutes, is also supported by tim e-honored principles of statut ory interpretation. Our role is to interpret the meaning of the terms included in a statute, not to insert what has been

omitted. Section 1-2-101, MCA; Coleman Const., Inc. v. Kudrna , 2006 MT 98, ¶ 7, 332 Mont. 112, ¶ 7, 136 P.3d 970, ¶ 7; City of Billings v. Gonzales, 2006 MT 24, ¶ 13, 331 Mont. 71, ¶ 13, 128 P.3d 1014 , ¶ 13. Section 53-21-122, MCA, provides persons with the right to object to the court’s finding of probable cause, but does not provide them with the right to a hearing on probable cause at the initial appe arance. We refuse to read a requirement for a hearing into the statute wh ere none currently exis ts, especially where the legislative history suggests no such requirement was in tended. This, however, does not render the statutory right to object a mere formality. As the District Court stated, the person has the opportunity to present evidence and testimony to challenge probable cause at the § 53-21-126, MCA hearing. The right to object also allows the person to preserve for appeal the issue of whethe r sufficient probable cause ex isted to support the petition.

9¶23 B. Does the statutory failure to provid e for a hearing on probable cause at the initial appearance stage in invol untary commitment cases cons titute a deprivation of due process of law? ¶24 Having concluded that the existing statutory scheme does not afford E.T. the right to challenge the probable cause finding by introducing evidence and testimony at his initial appearance before the court, we must consider whether the existing statutory scheme satisfies the minimum demands of due process. ¶25 Article II, Section 17 of the Montana Cons titution provides that “[n]o person shall be deprived of life, liberty or property without due proce ss of law.” Due process is “flexible and calls for such procedural protec tions as the particular situation demands.” Mathews v. Eldridge , 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976) (citation omitted). To determine whether the demands of due process were met in the instan t case, we apply the balancing test adopted by the United States Supreme Court in Mathews v. Eldridge

. Mathews , 424 U.S. at 335, 96 S. Ct. at 903; M.C. v. Dept. of Institutions , 211 Mont. 105, 109-10, 683 P.2d 956, 958 (1984). The Mathews test requires us to balance the interests of the individual against those of the state by considering th ree distinct factors: 1) the individual’s interest affected by the state acti on, 2) the risk of erroneous deprivation and the probable value of any a dditional or substitute procedural safegua rds, and 3) the government’s interest, including the additi onal fiscal and administrative burdens the additional or substitute safeguard would entail. Mathews , 424 U.S. at 335, 96 S. Ct. at

903.

10¶26 1. The individual’s interest affected by the state action ¶27 In many due process challenges to invol untary commitment procedures, the liberty

interest at stake is of the most fundamental nature: “Free dom from bodily restraint has always been at the core of the liberty protec ted by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana , 504 U.S. 71, 80, 112 S. Ct. 1780, 1785 (1992). In Matter of Shennum, we noted the “calamitous effect” a commitment can have, including the “deprivation of a person’s liberty for up to three months . . . and . . . inevitable damage to a person’s reputation.” 210 Mont. 442, 450- 51, 684 P.2d 1073, 1078 (1984). However, the case at bar must be distinguished from cases like Shennum

. In Shennum , the person was committed for three mont hs as a result of the State’s failure to properly adhere to the statutory pr ocedures governing involuntary commitment. Here, the detention is temporary - five days at most. We distinguish the case at bar from

Shennum not to diminish E.T.’s lib erty interests, but to properly define their scope. Though E.T. faced a shorter detention, th e same fundamental liberty of freedom from bodily restraint is implicated in the instant case. ¶28 2. The risk of erroneous deprivation an d probable value of additional safeguards ¶29 As a result of not being able to present eviden ce and testimony to challenge the court’s finding of probable ca use at the initial appearance, E.T. faces the risk of being erroneously detained for up to five days pe nding the § 53-21-126, MCA hearing, as well as the risk of submitting to an unnecessary court-ordered exam ination. We now consider the magnitude of that risk, and the value that a probable cause hearing at the initial appearance stage would have as an additional safeguard.

11¶30 The modern statutory scheme governing involuntary commitment proceedings contains multiple procedural safeguards to protect the constitutional rights of persons under this part. First, as discussed above in more detail, the statute requires the judge to review the petition for probable cause before the person is ha led into court. Section 53- 22-122(2), MCA. Petitions wh ich have no merit will be dismissed outright at this procedural checkpoint. Next, at the initia l appearance, the person is advised of his constitutional rights, and an attorney and a “fri end of respondent” are appointed to protect the person’s interests. Se ction 53-22-122(2), MCA. ¶31 The § 53-21-126, MCA hearing on the petition must be held within five days of this initial appearance- another safeguard which ensures that th e person may not be detained indefinitely. Section 53-22-122(2), MCA. In fact, the statutory scheme places

strict limits on the State’s ability to detain the person: th e person may not automatically be detained pending the hearing. Rather, th e court must specifically find that probable cause exists to detain the person, and must orally notify the person’s counsel immediately. Section 53-21-124, MCA. At that point, the pe rson has the right to request a detention hearing, which mu st be held immediately. Section 53-21-124(1), MCA. ¶32 The addition of a probable cause hearing at the initial appearance stage would serve as a check on the judicial determina tion made prior to the initial appearance. However, this check offers little value as an additional procedural safeguard. In the event that the person is not detained pending the hearing, he suffe rs no substantial detriment by waiting until the § 53-21-126, MCA hearing to present his evidence and testimony. In the event the person is detained, § 53-21-124, MCA, already provides him with the right

12to an immediate detention hearing, where he may challenge the probable cause for his detention by presenting evidence and testimony. Thus, a hearing on pr obable cause at the initial appearance stage would have either no effect on the person’s rights, or would simply duplicate another procedural safegua rd already provided by the Legislature. ¶33 3. The State’s interest ¶34 The State sets forth the purposes behind T itle 53, Chapter 21, Part 1 at § 53-21- 101, MCA: (1) [To] secure for each person who ma y be suffering from a mental disorder and requiring commitment the care and treatmen t suited to the needs of the person and to ensure that the care and treatment are skillfully and humanely administered with full respect for the person’s di gnity and personal integrity; (2) [To] accomplish this goal whenever possible in a community-based setting; (3) [To] accomplish this goal in an ins titutional setting only when less restrictive alternatives are unavailable or inadequa te and only when a person is suffering from a mental disorder and requires commitment; and (4) [To] ensure that due process of la w is accorded any person coming under the provisions of this part. As discussed in greater detail above, the Legi slature has specifically designed the present statutory scheme to ensure that due process of law is accorded to persons by providing them with ample notice of involuntary commitm ent proceedings. If we were to read a requirement for a probable cause hearing in to § 53-21-122, MCA, this would conflict with the Legislature’s express purpose in separating the initial appearance from the hearing on the merits of the petition. ¶35 In addition to the goals set forth above, the State has a very strong interest in preventing a person suffering from a mental di sorder from harming himself or herself, or

13the surrounding community. The Legislatur e empowered the courts to do this by allowing persons to be deta ined for up to five days pending the § 53-21-126, MCA hearing. Thus, where the court finds that probable cause exists, the person may be immediately detained and treated to prevent harm to himself or others. ¶36 Finally, requiring a probable cause hearing in all involuntary commitment cases would consume additional judicial resources. The existing statutory system promotes judicial economy by providing probable cause hearings to those who face the greatest risk of deprivation: the persons who are deta ined pending the § 53-21-126, MCA hearing. As discussed above, persons who are not de tained suffer little harm by waiting five days to address the merits of the petition at th e § 53-21-126, MCA he aring. Thus, this additional hearing offers little value to justify the additiona l burden it would place on the

courts. ¶37 In sum, the State’s interest in prot ecting persons involved in involuntary commitment proceedings an d the surrounding commun ity far outweighs the inconvenience of a temporary detention meas uring five days or less. The existing statutory scheme minimizes the risk of e rroneous deprivation of rights by providing numerous due process safeguards, including the right to an immediate hearing to challenge the probable cause fo r the person’s detention. A hearing on probable cause at the initial appearance stage would afford little additiona l procedural protection. ¶38 Thus, we conclude that E.T. suffered no due process violation in the instant case. Once the court issued its order finding that there was probable cause to detain him pending the full hearing, E.T .’s counsel could have imme diately requested a § 53-21-

14124(1), MCA detention hearing. At this hearing, E.T. coul d have presented evidence and testimony to challenge the probable cause for hi s detention. Inexplicably, E.T.’s counsel did not request the hearing prov ided for under the statute, but instead sought to introduce

evidence at the initial a ppearance itself.

CONCLUSION ¶39 In conclusion, we hold that the District Court did not err in refusing to hold a hearing on the probable cause for E.T.’s involuntary commitm ent. The existing statutory scheme does not provide a right to a hearing on probable cause at the initial appearance stage. Furthermore, due process does not require one. The existing procedural safeguards-especially the right to an immedi ate detention hearing-would have afforded E.T. adequate opportunity to challenge the probable cause for his detention, had he chosen to take advantag e of them. We affirm.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ JOHN WARNER /S/ JIM RICE /S/ PATRICIA COTTER /S/ BRIAN MORRIS

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