No. 83-305 INTHE SUPFSNE COURT OF THE STATE OF MONTANA 1984

INTHE MATTER OF ALAN RAY SHENWUM, Respondent.

APPEAL FROM: DistrictCourt of the Fourth Judicial District, Inand forthe County of Xissoula, The Ronorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD: For Appellant: Paterson, Marsillo, Tornabene & Schuyler; Charles W. Schuyler and Larry Elison argued, Missoula, Montana

For Respondent: Hon. Mike Greely, A'ctorney General, Helena, Montana Robert P.W. Smith argued, Asst. Atty. General, Helena Robert L. Deschamps, 111, County Attorney, Missoula, Montana: Robert Slomski argued, Deputy County Attorney, Missoula, Montana

Submitted: January 23, 1984 Decided: June 19,1984

Filed: ;I..J~ 

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ClerkMr. Justice John C. Sheehv deli-vered the Opinion of the Court.

Alan Ray Shennum appeals from an order of the District Court, Fourth JudicialDistrict,Missoula County, committing and confininghim to Warm Springs State Hospital for aperiod of three months. We determine in this case that the state failed to follow the statutory safeguards imposed upon the state when it sought the commitment of the respondent on the charge of being seriously mentally ill, and that such failure mandates reversal in this case. We set forth for any future proceedings the burden of proof imposed upon the state in such cases, the number of jurors necessary to reach a verdict, and answer respondent's contentions respecting the instructions given to the jury in this case. On the evening ofApril 25, 1983,Shennum arrived early for a scheduled meeting of the Missoula City Council and seatedhimself next toNeil R. Smith in thepublic section of the councilIs chambers. Smith noticed that Shennum was wearing over his shirt an unconcealed shoulder holster attached to his body by ropes, and that in the shoulder holster he ca.rried a .45 caliber semiautomatic pistol. Shennumbegan talking to Smith saying that Shennumwas in the process of putting a stop to women voting and that women shouldnot be allowed tohold public office. He was going to accompl-ish this through legislation. When Shennum asked Smith how many women were on the city council, Smith decided that he had better report the presence of Shennum in the council chambers to the officials. He feigned an excuse for 1ea.vingthe city council chambers and.reported the situationto a woman at the City Police Office in the same building. Smith then left the building because he anticipated trouble. TheMissoula City Police Officers surrounded the council chambers to keep an eye on Shennum. In themeantime, one of the police officers informed arriving members of the city council. The city council held an emergency caucus in another room and passed an emergency ordinance to make it unlawful,except for lawofficers, topossess a gun in a city building. Because of the delay of the council in getting to the meeting at the scheduled time, people began leaving the council chambers, including Shennum. When he got to the council chamher door, Shennum was taken into custody by two officers who immediately disarmed him of his pistol. Police officers determined it was fully loaded and cocked with a live round in the chamber and with a fully loaded clip of

seven rounds. In addition Shennum was carrying a fully loaded extra clip of .45 caliber ammunition in his shirt pocket. Shennum was then taken by the officers to an interview

room in thepolice department where he was questionedby the officers for thirty to fortyminutes. The officers attempted to obtain some identification from him and to ascertain his purpose in being in the city council chambers with a loaded gun. Shennumhad no identification on his person other than

a printed business card which gave his address but not his

name and which stated that he was a consultant to government and business. Shennum would repl-yonly that he worked for all government agencies. Thepolice officers had difficulty getting a positive identification from Shennum until they went to his car which was parked near the city council building. From the car, Shennum produced his driver'slicense and other material that gave the police a positive identification. Shennum was not placed under arrest or charged with an offense although the police retained his weapon. Shennum requested the return of his weapon, but the police officers told him that it would not be returned. Shennum indicated thathemight get anothergun anyway. Strippedof his gun, Shennum eitherpresented no further threat of danger to himself or to others in the community or the police officerswere not doing theirduty,becausehewas released into the night without any further precaution. It seems safe to assume that thepolice officersdid not in fact ignore their duty, but saw no further threat in Shennum without his gun. No further action had been taken by the police when on the next morning, Shennum again appeared at police headquarters, requestinq that his gun be returned to him. The record is absolutely bare of what happened on the morning of April 26, when Shennum appeared to retrieve his gun. No person testified as to what occurred at the time. It is clear however, that when he came in the morning, Shennum was deta-inedand a request was made through the county attorney's office for Shennum's mental examinationby Dr. Charles E. Lear, a Missoula psychiatrist. The doctor

came to the jail in themorning ofApril 26, and interviewed Shennum for 35 to 40 minutes. Later that day Shennum was transferred to the mental health unit of St. Patrick's Hospital inMissoul-a,Montana and Dr. Lear conducted a second interview of Shennum at the hospital on the following morning,April 27. On thatdate,Dr. Lear submitted a report

on aprepared form. He placed a "X" on appropriate places onthe form to indicate that Shennum suffered from a mental disorder which affected his cognitive or volitional functions, and that the least restrictive situation blhich would provide him adequate care and supervision was commitment toWarm Springs StateKospital. On April 27, the same day, the county attorney filed a petition alleging serious mental illness of Shennum and asking forhis commitmentto amental health facility fornot to exceed threemonths. On that day the court also signed a detention order requiring Shennum to be detained at the hospital until further order of the court. The minutes of the court reflect that Shennum was brought before the District Court with his court-appointed counsel and his court-appointed friend, and was there advised of his rights by the court. The court at that same time appointed an attorney to represent Shennum, a friend, Donald Louden, to protect his interests, and Michael W. Marks, a professional person of Shennum's choosing to examine him and testify at the hearing before the court. The court setMay 4, 1983 for

ahearing on thepetition. Shennum's counsel filed a request for a jury trial and the matter came on for trial before a jury on May 10, 1983. The jury returned averdict onMay 11,1983,that Shennumwas seriously mentally ill. After a further hearing, the order of commitment was signed by the district judge on May 12, 1983. Wewill refer to other factsasweproceed in discussing the issues. I. The statutes for the commitment of a seriouslymentally ill person do not present a model of intelligibility orclarity. What is clear from them, however, is the concern of the legislature that procedural safeguards be placed around the power of the state to commit a person for seriousmental illness. That concern may be found in the definition of "seriouslymentally ill-"itself. It is defined as "a mental disorder which has resulted in self-inflicted injury or iniury to others or the imminent threat thereof orwhich has deprived the person afflicted of the ability to protect his life or health." Section 53-21-102(14)

### , MCA. The same statute defines injury asphysical injury. Italsoprovides that no person may be involuntarily committed to a mental health facilility 

### - or detained for evaluation because he is suffering from a mental disorder unless the condition causes him to be seriously mentally ill within the meaning of the definition. Section 53-21-102(14),MCA. The state claims that it began proceedings against Shennum in this case under the emergency provisions of section 53-21-129, MCA. The pertinent portion of that statuteprovides:

"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 illmess 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 t%kinq 

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### " (Emphasisaddez)

As we have said earlier, the record isbare ofwhat the situation was at the police station on the morning that Shennum was detained, and Dr. Lear called to evaluate him. We know from the record only,and that fromDr. Lear, that he had been called to come to the city jail to examine Shennum.In his report and in his testimony at the hearing, Dr. Lear reports no physical in-jury or threat of physical injury at the county jail in the morning, reported to him or j.n his presence. In fact he relied in his report and in his testimony as proof that Shennum represented an imminent threat of injury,on the reports that Shennumhad come to the city council the night before with a loaded gun, and that some days earlier he had come to the county courthouse and had filed hiswill. Those are the factsuponwhich Dr. Lear based his evaluation that Shennum presented an imminent threat of physical injury. The record shows, however, that from the time the police took the qun from Shennum,he made

no threat of any kind against himself or anyoneelse. During the period of time thathewas in thehospital, fromApril 27 and throughout his trial, he was kept in a room in the hospital with an open door, free to wander out into an open

area nearby. The nurses had been advised that if he attempted to break out, that he should be allowed to d.o so and they should simply dial 911 to get emergency help. Nothing of that sort occurred. There is no showing in the record therefore of any circumstances existing on themorning of April 26, 1983 involving Shennum which would call toplay the emergency provisions of section 53-21-129, MCA. It is also clear from the record that at no time prior to his examinationby Dr. Lear,oruntil such time ashe appeared in court on April 27, that Shennum was advised of his constitut-ionalrights. Entirely lacking from the record is a finding by Dr. Lear on April 26, 1983, that an emergency situationexisted at the city jail. Thatwas a requisite for the further detention of Shennum in this case under the emergency statute. Section 53-21-129(2),MCA.If no emergency existed on the morning ofApril 26, and

we have no evidence that one did exist, then the procedure adopted by the state in committing Shennum, however proper the commitmentmay have been, deprived him of the procedural safeguards that the legislature has set up in the statutes when no emergency situationexists. For absent an emergency, it was the duty of the county attorney to proceed in accordancewith sections 53-21-121 through 53-21-126,MCA, in order to commit Shennum as a seriouslymentally illperson. Under 53-21-121, the county attorney, upon the written request of any person,may file a petition setting forth the information required in that section. Although the petition filed by the county attorney in this case stated that the requestwas made by Dr. Lear for the filing of the petition,

we find no written request in the record by Dr. Lear for proceedings tobe instituted. Apparently the county attorney

was relying on the form report of the medical examination submitted by Dr. Lear which had been incorrectly obtained from Shennum under thepurported emergency situation. After the petition was filed, it was the duty of the district judge to consider the petition and to find probable

cause therefrom. Section 53-21-122,MCA. We have no doubt that probable causewas set forth in the petition, but there

was no finding in the record of the district judge to that effect. There are minutes of the court which indicate that "the respondent was advised of his rights by the Court" on April 27, 1983. The statute requires that Shennumbe advised of his constitutional rights, his rights under this "part"

(apparently meaning his procedural rights under 53-21-115, MCA) and "the substantive effect of the petition." Section53-21-122(2),MCA. Again the record is bare that Shennumwas

so advised. Section 53-21-124,MCA, provides that the courtmay not order the detention of the respondent pending the hearing unless "requested by the county attorney and upon the existence of probable cause for detention." Here Shennum's counsel did not request a detentionhearing,but that should be one of the rightswhich the respondent should be informed of at the time of his first appearance before the court. The importance of these procedural steps in a commitment

case cannot be exaggerated. These safeguardswere inserted by the legislature because of the calamitous effect of a commitment; a deprivation of a person's liberty for up to three months (a period which may be extended) and the inevitable damage to a person's reputation. The California Supreme Court nailed it down when it said: "Onehas only to imagine the horror experiencedby a competentperson falsely committed as mentally disturbed in order to appreciate that freedom isopenly on trial ata civil commitmentproceeding." Estate of Roulet (Cal. 1979), 152Cal.Rptr. 425, 590 P.2d 1, 3. It is apparent from the commitment statutes that the intention of the legislatureis that aperson chargedwill be advised of his constitutional rights and other rights before



### an order for his mental evaluation by a professional person ismade. In this case,when Shennumwas advised onApril 27, 1983,by theDistrictCourt of his rights, itwas already too late. Hismental evaluationby a doctor had occurred on the day before. We respect the intention of the legislature inproviding protective safeguards in commitment cases. Because thosesafeguardswere not observedby the state in the handling of Shennum's commitment,we reverse the commitmenthere. Nothing in this opinion shall be held to prevent the state from proceeding properly to determine whether Shennum is seriously mentally ill after remittitur. Although Shennum in this casebroke no law in carrying openly a loaded pistol into the council chambers,that does not appear to be normal behavior. (We remember the story of themasked bank robber who pointed a gun at the bank teller and said, "Giveme your money and act normal." The bank teller, who had taken Psychology 101 said, "Definenormal.") Whether in any future proceedings similiar actions constitute him an imminent threat to himself or to others,we leave to 2 trier of fact. 11. There are issues raised in this case which we must discuss since there is a possibility of some future commitmentproceedings. Counsel for Shennum contends that sincea commitment for being seriouslymentally illhas the effect of depriving the committedperson of his liberty and damage tohis reputation, the result is as serious as though criminal proceedingswere brought againsthim. Therefore,counsel contends,the burden of proof on the state to commit Shennum should have been proof beyond a reasonabledoubt. By the same kind of reasoning he contends that the verdict of the jury should be unanimous instead of by two-thirds of the jurors. Shennum cites the rule in California which is as he contends,but California has no controlling statute. We are controlled by the provisions of sections 53-21-126, MCA, which sets out the standard of proof in any hearing andwhichalso provides on trialby jury,two-thirdsmust concur in the finding that the respondent is seriouslymentally ill. The statute further provides that the trial shallbe governed by theMontana Rules of Civil Procedure. The standard of proof required of the state in a commitmenthearing is this: "(2) The standard of proof in any hearing held pursuant to this section is proof beyond. a reasonabledoubtwith 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." Section 53-21-127(2)

## , MCA. Counsel for Shennum also contends that the "trifurcated" legal standard of persuasion set forth in the foregoing statute is impossible to apply and confusing to a jury. We met that contention, however, inMatter ofN.B. (~ont. 1980), 620 P.2d 1228, 1231, 37 St.Rep. 2031, 2034. There we set forth, and iterate here, that the statute's use of "reasonablemedical certainty" means only a standard for the medical witnesses testifying in commitment proceedings. We stated thatproof ofmental disorders to a reasonable medical certainty is sufficient if with the other evidence in the case, the trier of facts is led to the conclusion that the serious mental illness exists by clear and convincingproof. Proof of physical facts, of course, must be proven beyond a reasonable doubt under the statute. In Addington v. Texas (1979), 441 U.S. 418, 99 S.Ct, 1804, 60 L.Ed.2d 323,the United States SupremeCourt stated that "clear and convincing proof" is somewhere between a preponderance of the evidence and proof beyond a reasonable doubt. No further refinement of the term is necessary, inour opinion. We seeno d-ifficultyin advising a jury that it must find by clear and convincing proof that the person charged is suffering from seriousmental illness. The words "clear and convincing" import fairly well defined concepts which a person otherwise capable of sitting on a jury should have no difficulty in grasping. Addington permits that degree of proof in commitmentproceedings. Since the statute permits commitment proceedings to be governed by the Montana Rul-es of Civil Procedure, the provisions of the statutes, and of the Rules, for a two-thirds jury verdict are a sufficient indication of legislative intent and we will not require an increased number of jurors for a commitmentverdict.

There is no need,as counsel for Shennum contends, that the jurybe instructed that aperson should be advised ofhis constitutional rights before he is involuntarily detained or examined. Procedural matters are not matters for a jury to determine. Nor is it necessary for the District Court to instruct the jury on all the constitutiona.lprotections set out in the Montana Constitution or in the federal constitution. The court's dutywith respect to instructions is only to state the law as applicableto the case and not to give abstract instructions. Shennum also contends that the District Court should have granted his motion in limine to quash any statements made by Shennum to the police or to the doctor before the petition for his commitment was filed. We see no prejudice in the statements that he made to thepolice officers on the night of the gun incident, except of course that the statements were erratic and wandering. These are notincriminating per se and there is no reason why such statements could not be given to the jury. In any future proceedings against Shennum he undoubtedly will have to be re-examined sohis statements to Dr. Lear are moot as far as a futureproceeding is concerned. IV. After the appealwas filed.in this case, it appears from briefs that apetitionwas filed in PowellCounty for further detention of Shennum, and that proceedings there have been stayed pending this appeal. Becausewe reverse his original commitment from Missoula County, his further detention under section 53-21-128, MCA, is improper. We therefore reverse the commitment of Alan Ray Shennum through the order of the District Court in Missoula County, and if he is still detained on remittitur we direct the county attorney of Missoula County to proceed with all deliberate speed toprocure the releaseof respondent Shennum insofar as his further detention depends on the original commitment from Missoula County. Nothing hereinbars further proceedingsproperly followed in thismatter. 

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# g/\ic~:i Justice

We Concur:JusticesMr. Justice Fra.nkB. Morrison, Jr. respectfully dissents as follows: The majority opinion is a mystery. First, reliance is placed upon Estate of Roulet (Ca.1.1979), 152 Cal.Rptr. 425, 590 P.2d 1,wherein the California Supreme Court eloquently stated that freedomwas openly on trial in a civil commitment proceeding. The CaliforniaCourt held that,where liberty is at stake, as in a civil commitment proceeding, constitutional rightsattach affording right to aunanimous juryverdict and "proofbeyond a reasonabledoubt." In rejecting Shennum's contention thathe is entitled to

a unanimous jury verdict and a requirement that the State prove the case beyond a reasonable doubt, the majority then distinguishes the Roulet case. Themajority states: "Shennum cites the rule in California which is as he contends, but California has no controlling statute. We are controlled by the provisions of sections 53-21-126, MCA, which sets out the standard of proof in any hearing and which also provides on trial by jury, two-thirds must concur in the finding that the respondent is seriously mentally ill. The statute further provides that the trial shallbe governedby theMontana Rules of Civil Procedure." First of all, the majority is wrong. The California

case did involve the constitutionality of California statutes which allowed the taking of liberty in a "civil commitment" proceedingwithoutbenefit ofdue process guaranteesafforded criminal suspects. Secondly, elementary constitutional law teaches that statutes in conflict with the Constitution cannot stand. Therefore, if constitutional rights attach to

one threatened with loss of liberty in a "civil commitment" proceeding, then statutes in conflict with those rights must necessarily fall. Themajority further confuses the issueby saying: "It is apparent from the commitment statutes that the intention of the Legislature is that a person charged will be advised of his Constitutional rights and other rights before an order for hismental evaluation by a professional person is made.

### " (emphasis added) Again, it seems elemental that if constitutional rights have attached they must be fully accorded, the statutes notwithstanding. The majority seems to concede that Shennum has constitutional rightswhere his liberty is threatenedand yet seems to say those rights are defined in the statutes. Nonsense. Shennum, facing a deprivation of liberty in a civil commitment proceeding, should be entitled to the panoply of constitutional rights afforded an accused. These include the right to remain silent,the right to counsel,unanimous jury verdict and requiring the State to prove the case beyond a reasonabledoubt. Themajority result isunclear. The case isunusual for there is nothing to retry. Shennum is no longer incarcerated. Iwould simplyhold thatwhatwent before is a nullity and the statuteswhich conflict withwell established

I Mr. Justice DanielJ. Shea dissentsandwill filea written dissent later.DISSENT OF MR. JUSTICE DANIEL J. SHEA

KO. 83-308 IN THEMATTER OF ALAN RAY SHENNUM

CLERKOFSUPPiEPdaECOURT STATEOF fdbrlsZNTANAMr. Justice Daniel J. Shea,dissenting:

I agree with the dissent of Mr. Justice Franlc 3. Morrison, and would require proof beyond a reasonable doubt in order to commit a person to a mental health institution. The Fourteenth Amendment to the United States Constitution and ARt. 11, 17 of our own Constitution requires that a person cannot be deprived of his liberty without due process of law. The majority concedes that a person must be advised of his Constitutional rights before being committed in a civilproceeding. In criminalmatters, due process requiresproof beyond a reasonable doubt in order to deprive a person of his liberty. Civil commitment presents the same type of serious infringement upon individual liberty as does criminal incarceration. Also, commitment to a mental health institution can have a detrimental effect upon the way in which society perceives the committedperson. The same due process standard applied to criminal commitments should thereforebe applied to civil commitments and proof beyond a reasonable doubt should be required.