No. 85-46 

IN THE SUPREME COURT OF THE STATE OF FIONTANA 

1985 

IN THE MATTER OF 

J.B., ~espondent/Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry L. Seiffert, Billings, Montana 

For Respondent : 

Harold Hanser, County Attorney, Billings, 

Montana 

Hon. Mike Greely, Attorney General, Helena, 

Montana 

Submitted on Briefs: May 3, 1985 

Decided: September 10, 1985 

Filed: SEP 10 1985 

Clerk 
Mr. Chief Justice J. A. Turnage del'ivered the Opinion of the 

Court. 

J. B. appeals an order of involuntary mental commitment 

in the Montana State Hospital at Warm Springs, Montana, 

entered in the District Court of the Thirteenth Judicial 

District, Yellowstone County, on December 31, 1984. 

We affirm the order of involuntary commitment. 

Appellant raises the following issues for our 

determination: 

1. Whether there was sufficient credible evidence to 

support the conclusions that the respondent was seriously 

mentally ill. 

2. Whether the respondent was properly detained under 

an emergency situation. 

3. Whether the commitment herein was to the least 

restrictive environment. 

For a long period of time J. R. had been a patient of 

psychiatrist Dr. Joseph D. Rich, M. D. Dr. Rich had admitted 

J. B. for psychiatric treatment to Deaconess Hospital in 

February 1982, March 1983, August 1983, April 1984, May 1984, 

and on December 20, 1984. 

Police officers brought J. B. to Billings Deaconess 

Hospital on December 20, 1984, for driving his automobile 

around in circles in an open field, acting bizarre and talking of demons and odd religious topics. 

Dr. Rich's report of December 26, 1984, states: 

[J. B.] is a 37-year-old divorced white 

male who was admitted to the Psychiatric 

Unit of the Billings Deaconess Hospital 

under my care on 12/20/84. The patient 

has a past history of multiple admissions to this hospital for very similar 

reasons, and my diagnosis has been that 

of a BIPOLAR AFFECTIVE DISORDER OF THE 

MANIC TYPE. Each admission has been 

precipitated because of his failure to 
return to see me for proper medication 

management and because he has ceased 

taking his medications. This time is 

essentially the same. 

I have met daily with [J. B. I and have 

been attempting to treat him with Lithium Carbonate, but this has been difficult because it is available in only an 

oral preparation; and. he has been very 

resistant and very manipulative in 

trying to avoid taking this medication. 

I have had to maintain him on the locked 

unit of our Psychiatric facility, and he 

has continued to be very delusional and 

manic in his behaviors; and I have come 

close to having to place him in full 

restraints on a number of occasions. 

Early this morning, I was conta.cted by 

the nurse on duty who was very concerned 

about his state of irritability and 

apparent distress and quoted him as 

saying, "I feel like killing anybody and 

anyone in sight". Extra medication was 

ordered, however this is an example of 

our concerns about his instability and 

his potential for harm to someone else. 

My diagnosis continues to be that of a 

bipolar affective disorder, manic, of 

the chronic type with an acute exacerbation. I believe that [J. B.1 is seriously mentally ill and that he is 

incapable at this point of caring for 

himself and appreciating the extent of 

his illness. I regard him as a 

potatential [sic] danger to himself and 

to others because of his emotional 

disturbance. 

I believe that [J. B. I is in need of a 

longer term treatment program such as 

would be available at the Montana State 

Hospital at Warm Springs, Montana. I am 

recommending that he be committed there 

for treatment and transfer as soon as 

possible. 

Petition for commitment was filed December 26, 1984, by 

the Yellowstone County Attorney alleging J. B. to be seriously mentally ill. On December 28, 1984, the District Court 

after hearing entered a statement of facts and order finding 

J. B. to be seriously mentally ill, beyond a reasonable 

doubt, and as defined in S 53-21-102(14), MCA, and committing 
him to Montana State Hospital at Warm Springs, Montama, for 

treatment and evaluation for a period not to exceed three 

months. 

At the December 28, 1984, hearing Dr. Rich testified: 

Q. (By Mr. Brooks) Dr. Rich, now, you 

have examined [J. B. I recently; is that 

correct? 

A. That's correct. 

Q. And have you been able to determine 

whether or not [J. B.] is at this point 

suffering from a serious mental disease? 

A. Yes, I believe he is. I've made the 

diagnosis of a bipolar affective disorder of the manic type, and it's currently referred to as a manic depressive 

disorder. 

Q. And with [J. B. I , how has this type 

of mental illness been manifested? 

A. Well, this time it was very similar 

to other times. He becomes excessively 

religious. He begins to feel there are 

people out there attempting to harm him. 

He begins to do things that really 

afterwards cause him a great deal of 

embarrassment in the community. He d.oes 

very erratic kinds of things. He talks 

of having to kill. He becomes excessively and overtly sexual. 

Q. Now, recently based on your diagnosis, do you think at this time that 

rJ. B. I is able to protect himself as 

far as his health and as far as his 

welfare is concerned in his present 

living situation? 

A. No, I really do not, a.nd I could 

give some examples for that. First of 

all, I've spent hours discussing with 

him how medication really helps his 

illness, and I've had these discussions 

when he's healthy, and yet he refuses to 

take the medication to maintain himself 

out of the hospital. 

Now that he's in the hospital, this 

medication can only be given orally. It 

cannot be given in a shot form, and he's 

done everything he can to avoid talking 

[sic] the medication, and he's beating 
us at the game, and they are going down 

even though I've been increasing the 

dose. 

I talked to one of our nurses the other 

evening. She said "How can I handle 

this, because he feels an overwhelming 

urge to kill. " I gave her some orders 

about not being with him without a man 

in attendance, so I feel that this 

illness is very devastating to him and 

potentially is a danger to others. 

(2. From what you've said, I take it the 

major problem at this point is the fact 

that you cannot control and supervise 

his medication? 

A. That's right. This particular 

medication is not available as a shot, 

so he does get better with treatment, 

and there is a possibility for him to 

maintain himself out of the hospital, 

but he has to work along with a psychiatrist to take the medication on a regular basis, to get blood tests on a 

regular basis, and he has failed to do 

that over and over again. 

Without objection Dr. Rich's report of December 26, 

1984, was admitted in evidence. 

J. B. testified as follows: 

Q. Have you made threats of injury to 

anybody? 

A. Yes. 

Q. And was that what the doctor testified to? 

A. Yes. 

I 

Was there sufficient credible evidence to support the 

finding that J. B. was seriously mentally ill? 

We conclude that there was sufficient credible evidence 

to support the District Court findings. 
The definition of "mental disorder" is stated in 

53-21-102 (5), MCA: 

"Mental disorder" means a.ny organic, 

mental, or emotional impairment which 

has substantial adverse effects on an 

individual's cognitive or volitional 

functions. 

The definition of "seriously mentally ill" is stated in 

§ 53-21-102 (14), MCA: 

"Seriously mentally ill" means suffering 

from a mental disorder which has resulted in self-inflicted injury or injury to 

others or the imminent threat thereof or 

which has deprived the person afflicted 

of the ability to protect his life or 

health. For this purpose, injury means 

physical injury. No person may be 

involuntarily committed to a mental 

health facility or detained for evaluation and treatment because he is an 

epileptic, mentally deficient, mentally 

retarded, senile, or suffering from a 

mental disorder unless the condition 

causes him to be seriously mentally ill 

within the meaning of this part. 

The standard of proof required is stated in 

53-21-126 (2), MCA: 

The standard of proof in any hearing 

held pursuant to this section is proof 

beyond a reasonable doubt with respect 

to any physical facts or evidence and 

clear and convincing evidence as to all 

other matters, except that mental disorders shall be evidenced to a reasonable 

medical certainty. Imminent threat of 

self-inflicted injury or injury to 

others shall be evidenced by overt acts, 

sufficiently recent in time, as to be 

material and relevant as to the respondent's present condition. 

The previously quoted facts from the record establish 

proof beyond a reasonable doubt as to J. B. having been 

seriously mentally ill at the time of his commitment. 

Dr. Rich's report of December 28, 1984, established 

that J. B. suffered from a mental disorder, bipolar affective 

disorder of the manic type, a manic depressive disorder. His 
testimony from the transcript shows that he had admitted 

J. B. to the hospital six times since February 1982, almost 

every admission because J. B. refused to take his medication. 

Dr. Rich's report and testimony established that J. B. 

had stated, "I feel like killing anybody and anyone in 

sight." J. B. testified that he had made threats and tha.t 

was what the doctor was talking about. 

In the Matter of the Mental Health of Goedert (1979), 

180 Mont. 484, 487, 591 P.2d 222, 224, this Court stated: 

While not every threat can be considered 

an overt act, the testimony and circumstances of this case indicate that 

appellant's threats fulfilled the statutory requirement of an overt act. A 

threat to kill is a verbal act that 

falls within the definition of an "overt 

act" as set forth in the statute. 

"The threat to kill another is a verbal overt act. It 

manifests the commission of a dangerous act upon . . . another." In the Matter of F. B. (Mont. 1980), 615 ~.2d 867, 869, 

37 St.Rep. 1442, 1445. J. B. expressed with agitation, "I 

feel like killing anybody and anyone in sight." This statement is a verbal act that falls within the definition of an 

"overt act" as set forth in the statute. 

When there is proof beyond a reasonable 

doubt that there is a present indication 

of probable physical injury likely to 

occur at any moment or in the immediate 

future, coupled with the finding within 

a reasonable medical certa-inty that the 

individual is suffering from a mental 

disorder, then involuntary civil comrnitment . . . is required. 

F. B., 615 P.2d at 870. 

Our citizens are entitled to protection from harm at 

the hands of those unfortunate persons who are victims of a 

mental disorder. Most certainly the legislature never intended that blood of innocent people must first be shed 
before the statutory definition of "overt act" has been 

satisfied. 

Most of J. B. Is commitments ordered by Dr. Rich were 

related to his failure to follow prescribed medication and 

medical advice in monitoring his condition while he was in an 

outpatient status. This failure, in the facts presented 

here, has deprived J. B. of the ability to protect his health 

and also meets the test of the statutory definition of "seriously mentally ill." Section 53-21-102(14), MCA; In the 

Matter of C. M. (1981), 195 Mont. 171, 635 P.2d 273. 

The core purpose of our statutory scheme in addressing 

those unfortunate persons who suffer a mental disorder is to 

secure for them such care and treatment, skillfully and 

humanely administered, as may be in their best interest. 

This purpose is codified in § 53-21-101(1), MCA. 

I1 

Whether the respondent was properly detained under an 

emergency situation. 

From the discussion of the first issue we conclude that 

J. B. was properly detained under the emergency provisions of 

S; 53-21-129, MCA. J. B.'s five prior admissions to Billings 

Deaconess Hospital and the recent events leading to his 

admission of December 20, 1984, establish in the record that 

the requirements of the statute have been substantially 

satisfied. 

111 

Whether the commitment herein was to the least restrictive environment. 

The District Court found: 
4. In regard to treatment alternatives 

available, Dr. Rich testified that 

out-patient supervision, or a similar 

local course of treatment would not be 

appropriate nor helpful in improving 

respondent's condition at this time, 

primarily due to the inability of respondent to cooperate in taking his 

medication as prescribed; that respondent is, for the immediate future, in 

need of longer term, in-patient treatment at the Montana State Hospital in 

Warm Springs and that this is the least 

restrictive environment for respondent 

at this time. 

The District Court's finding is based upon substantial credible evidence and will not be disturbed. 

The findings and order of the District Court are 

affirmed.. 

We concur: 
Mr. Justice Frank B. Morrison, Jr., dissenting: 

I respectfully dissent. 

Section 53-21-102(14), MCA, provides in part as follows: 

No person may be involuntarily committed 

to a mental health facility or detained 

for evaluation and treatment because he 

is . . . suffering from a mental disorder 

unless the condition causes him to be 

seriously mentally ill within the meaning 

of this part. 

The State must prove physical facts beyond a reasonable 

doubt and all other matters by clear and convincing evidence. 

To prove imminent threat of injury requires a showing of 

overt acts, recent enough to be relevant to the present 

condition. Section 53-21-126(2), MCA. 

I find this record to be devoid of any substantial 

credible evidence to support a finding of "overt acts." A 

fair summary of the evidence against J.B. is the following: 

(1) He masturbated during his last hospitalization. (2) He 

reached out and touched female staff nn the "breast or on the 

rear." (3) A report to a nurse that he had feelings of 

urges to kill which were described as, not so much a threat 

of violence, but J.B.'s feelings. (4) At the time J.B. was 

apprehended he was driving an automobile around in circles in 

an open field and when stopped spouted "religious ideation." 

Dr. Rich gave an expert opinion in addition to the proof 

outlined above. The doctor stated: "I feel that this illness is very devastating to him and potentially is a danger 

to others." 

The summary of evidence against J.B. shows him to be 

bizarre. F4ore should be required for commitment. This case 

sets a dangerous precedent for incarceration of those deemed 

to be different. 

The courts should be vigilant in protecting the rights 

of those sought to be committed. The discharge of judicial 
responsibility includes rigorous application of the statutory 

mandate. The State has failed to prove that J.B. took overt 

acts to create a present danger to either himself or others. 

The failure of such proof should require reversal of the 

involuntary commitment.