No. 83-305 

IN THE SUPFSNE COURT OF THE STATE OF MONTANA 

1984 

IN THE MATTER OF 

ALAN RAY SHENWUM, Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the 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~ I 9 1984 

Clerk 
Mr. Justice John C. Sheehv deli-vered the Opinion of the 

Court. 

Alan Ray Shennum appeals from an order of the District 

Court, Fourth Judicial District, Missoula County, committing 

and confining him to Warm Springs State Hospital for a period 

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 of April 25, 1983, Shennum arrived early 

for a scheduled meeting of the Missoula City Council and 

seated himself next to Neil R. Smith in the public section of 

the council Is 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. 

Shennum began talking to Smith saying that Shennum was in the 

process of putting a stop to women voting and that women 

should not be allowed to hold 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.ving the city council chambers and. reported the situation 
to a woman at the City Police Office in the same building. 

Smith then left the building because he anticipated trouble. 

The Missoula City Police Officers surrounded the council 

chambers to keep an eye on Shennum. In the meantime, 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 law officers, to possess 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 the police department where he was questioned by the 

officers for thirty to forty minutes. 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. Shennum had 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-y only that he worked for 

all government agencies. The police 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's 
license 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 

that he might get another gun anyway. 

Stripped of his gun, Shennum either presented no further 

threat of danger to himself or to others in the community or 

the police officers were not doing their duty, because he was 

released into the night without any further precaution. It 

seems safe to assume that the police officers did 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-ined and a request was made through the 

county attorney's office for Shennum's mental examination by 

Dr. Charles E. Lear, a Missoula psychiatrist. The doctor 

came to the jail in the morning of April 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 in Missoul-a, Montana and Dr. Lear conducted a second 

interview of Shennum at the hospital on the following 

morning, April 27. On that date, Dr. Lear submitted a report 

on a prepared form. He placed a "X" on appropriate places on 
the 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 to Warm Springs State Kospital. 

On April 27, the same day, the county attorney filed a 

petition alleging serious mental illness of Shennum and 

asking for his commitment to a mental health facility for not 

to exceed three months. 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 set May 4, 1983 for 

a hearing on the petition. 

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 a verdict on May 11, 1983, that Shennum was 

seriously mentally ill. After a further hearing, the order 

of commitment was signed by the district judge on May 12, 

1983. 

We will refer to other facts as we proceed in discussing 

the issues. 

I. 

The statutes for the commitment of a seriously mentally 

ill person do not present a model of intelligibility or 
clarity. 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 serious mental 

illness. 

That concern may be found in the definition of 

"seriously mentally 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 or which 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 as physical injury. It also provides 

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 

statute provides: 

"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 - the person into 

custody. " (Emphasis addez ) 

As we have said earlier, the record is bare of what 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 from Dr. 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 Shennum had 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 his will. Those are the facts upon which 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 anyone else. During 

the period of time that he was in the hospital, from April 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 the morning 

of April 26, 1983 involving Shennum which would call to play 

the emergency provisions of section 53-21-129, MCA. It is 

also clear from the record that at no time prior to his 

examination by Dr. Lear, or until such time as he appeared in 

court on April 27, that Shennum was advised of his 

constitut-ional rights. Entirely lacking from the record is a 

finding by Dr. Lear on April 26, 1983, that an emergency 

situation existed at the city jail. That was 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 of April 26, and 

we have no evidence that one did exist, then the procedure 

adopted by the state in committing Shennum, however proper 

the commitment may have been, deprived him of the procedural 

safeguards that the legislature has set up in the statutes 

when no emergency situation exists. For absent an emergency, 

it was the duty of the county attorney to proceed in 

accordance with sections 53-21-121 through 53-21-126, MCA, in 

order to commit Shennum as a seriously mentally ill person. 

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 

request was made by Dr. Lear for the filing of the petition, 

we find no written request in the record by Dr. Lear for 

proceedings to be 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 the purported 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 cause was 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 Shennum be 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." Section 
53-21-122(2), MCA. Again the record is bare that Shennum was 

so advised. 

Section 53-21-124, MCA, provides that the court may 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 detention hearing, but that should 

be one of the rights which 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 safeguards were 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: "One has only to 

imagine the horror experienced by a competent person falsely 

committed as mentally disturbed in order to appreciate that 

freedom is openly on trial at a civil commitment proceeding." 

Estate of Roulet (Cal. 1979), 152 Cal.Rptr. 425, 590 P.2d 1, 

3. 

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 his mental evaluation by a professional person 

is made. In this case, when Shennum was advised on April 27, 

1983, by the District Court of his rights, it was already too 

late. His mental evaluation by a doctor had occurred on the 

day before. 

We respect the intention of the legislature in providing 

protective safeguards in commitment cases. Because those 
safeguards were not observed by the state in the handling of 

Shennum's commitment, we reverse the commitment here. 

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 case broke 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 the masked bank robber 

who pointed a gun at the bank teller and said, "Give me your 

money and act normal." The bank teller, who had taken 

Psychology 101 said, "Define normal.") 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 

commitment proceedings. 

Counsel for Shennum contends that since a commitment for 

being seriously mentally ill has the effect of depriving the 

committed person of his liberty and damage to his reputation, 

the result is as serious as though criminal proceedings were 

brought against him. Therefore, counsel contends, the burden 

of proof on the state to commit Shennum should have been 

proof beyond a reasonable doubt. 

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 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 shall be governed by 

the Montana Rules of Civil Procedure. 

The standard of proof required of the state in a 

commitment hearing is this: 

"(2) 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." 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, in Matter of N.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 

"reasonable medical certainty" means only a standard for the 

medical witnesses testifying in commitment proceedings. We 

stated that proof of mental 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 convincing proof. 

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 Supreme Court 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, in 
our opinion. We see no d-ifficulty in advising a jury that it 

must find by clear and convincing proof that the person 

charged is suffering from serious mental 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 commitment proceedings. 

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 commitment verdict. 

There is no need, as counsel for Shennum contends, that 

the jury be instructed that a person should be advised of his 

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.l protections set 

out in the Montana Constitution or in the federal 

constitution. The court's duty with respect to instructions 

is only to state the law as applicable to 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 the police officers on the 

night of the gun incident, except of course that the 

statements were erratic and wandering. These are not 
incriminating 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 so his statements to Dr. Lear are moot as far as 

a future proceeding is concerned. 

IV. 

After the appeal was filed. in this case, it appears from 

briefs that a petition was filed in Powell County for further 

detention of Shennum, and that proceedings there have been 

stayed pending this appeal. Because we 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 to procure the release of respondent Shennum 

insofar as his further detention depends on the original 

commitment from Missoula County. Nothing herein bars further 

proceedings properly followed in this matter. 

/--', 

k. \Lk~ ,-,< p, g/\ic~:i Justice 

We Concur: 
Justices 
Mr. Justice Fra.nk B. 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 freedom was openly on trial in a civil commitment 

proceeding. The California Court held that, where liberty is 

at stake, as in a civil commitment proceeding, constitutional 

rights attach affording right to a unanimous jury verdict and 

"proof beyond a reasonable doubt." 

In rejecting Shennum's contention that he 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. The majority 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 shall be governed by the Montana 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" 

proceeding without benefit of due process guarantees afforded 

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. 

The majority further confuses the issue by 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 his 
mental 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 rights where his liberty is threatened and 

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 

reasonable doubt. 

The majority result is unclear. The case is unusual for 

there is nothing to retry. Shennum is no longer 

incarcerated. I would simply hold that what went before is a 

nullity and the statutes which conflict with well established 

I Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

KO. 83-308 

IN THE MATTER OF ALAN RAY SHENNUM 

CLERK OF SUPPiEPdaE COURT 

STATE OF fdbrlsZNTANA 
Mr. 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 civil proceeding. In criminal matters, 

due process requires proof 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 committed person. The same due process standard applied 

to criminal commitments should therefore be applied to civil 

commitments and proof beyond a reasonable doubt should be 

required.