No. 94-520

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN THE MATTER OF THE MENTAL

HEALTH OF D.H.,

Respondent and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Allen Smith, Jr., and Lonnie Olson, Mental

Disabilities Board of Visitors, Montana

Advocacy Program, Warm Springs, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Jennifer Anders, Assistant Attorney

General, Helena, Montana

Mike McGrath, Lewis and Clark County

Attorney, Vicki Frazier, Deputy County

Attorney, Helena, Montana

Filed:

Submitted on Briefs: March 2, 1995

Decided: April 11, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

On September 13, 1994, the Lewis and Clark County Attorney's

Office filed a petition in the District Court for the First

Judicial District in Lewis and Clark County, in which it alleged

that D.H. was seriously mentally ill and requested that the

District Court enter an appropriate treatment order pursuant to

§ 53-21-127, MCA. Later that day, the District Court ordered that

D.H. be involuntarily committed to the custody of the Montana

Department of Corrections and Human Services for placement in the

Montana State Hospital at Warm Springs for a period not to exceed

90 days. D.H. appeals from the District Court's order. We reverse

the order of the District Court.

The following issue is dispositive on appeal:

Were the procedural safeguards imposed by statute followed

prior to the District Court's order which committed D.H. to the

State Hospital?

FACTUAL BACKGROUND

On September 11, 1994, D.H. voluntarily entered a support

center at St. Peter's Hospital in Helena, where he had sought

treatment on prior occasions for symptoms of paranoid

schizophrenia. The following day, while D.H. was at the hospital,

a hospital employee, Carol Fraser, filed a mental evaluation report

and requested that a petition be filed to commit D.H. to a mental

health facility.

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On September 13, 1994, the Lewis and Clark County Attorney's

Office filed a petition in District Court in which it requested a

commitment order. Attached to the petition was Frazer's evaluation

of D.H. That same day, the District Court appointed an attorney to

represent D.H., ordered that an initial appearance be made by D.H.,

and found that probable cause existed to believe that D.H. was

seriously mentally ill.

At or immediately following the initial appearance, the court

issued another order in which it related that D.H. had appeared and

was advised of his constitutional rights, as well as the effect of

the petition, and directed that a hearing be held at 2:35 p.m.,

five minutes after the initial appearance. In that order, the

court also appointed a "friend" of the respondent, and ordered

Robert E. Brown, a professional person of D.H.'s choice, to examine

him. Finally, the court stated that Fraser's report attached to

the petition was sufficient to satisfy the requirements of

§ 53-21-123, MCA.

The hearing to consider the merits of the petition was held

immediately following the initial appearance. Frazer was the only

witness called to testify.

Following the hearing, the District Court ordered that D.H. be

committed to the Montana State Hospital for a period not to exceed

90 days. This appeal is brought on D.H.'s behalf by attorneys for

the Mental Disabilities Board of Visitors.
DISCUSSION

Were the procedural safeguards imposed by statute followed

prior to the District Court's order which committed D.H. to the

State Hospital?

The issue in this case involves the application of Montana

statutes to undisputed facts. We review a district court's

application of the law to determine whether the district court was

correct. Barthulev. Karman (Mont. 1994), 886 P.2d 971, 975, 51. St.

Rep. 1423, 1425.

D.H. contends that because the District Court ignored

procedural requirements related to civil commitments, its

commitment order should be reversed. The State concedes that the

procedural issue raised by D.H. is controlled by our recent

decision in MatterofR.M (Mont. 1995), 889 P.2d 1201, 52 St. Rep. 68.

However, during the briefing stages of this case, the parties did

not have the benefit of that result.

Montana has enacted specific procedural safeguards which must

be complied with as part of any effort to involuntarily commit any

person. See generally Title 53, Chapter 21, MCA. Pursuant to

§ 53-21-121, MCA, a county attorney may file a petition for

commitment of a person alleged to be seriously mentally ill upon

receipt of a written request from a person with direct knowledge of

relevant facts. Once presented with a petition, a district court

must first consider whether probable cause exists to support the

petition. Section 53-21-122(2) (a), MCA. If probable cause exists,

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the court must immediately appoint counsel for the respondent and

hold an initial hearing. At the initial hearing, the respondent

must be advised of his or her constitutional rights and the

substantive effect of the petition. Section 53-21-122(2) (b) (i),

MCA. Finally, the court is required to appoint a professional

person to examine the respondent, appoint a "friend" for the

respondent, and set a date and time for a hearing on the petition.

Section 53-21-122(2) (b) (ii), MCA.

Section 53-21-123(l), MCA, states that following an initial

hearing, and without unreasonable delay, the respondent shall be

examined by the appointed professional person who shall report to

the county attorney and the court. If the appointed professional

person recommends dismissal, the court should ordinarily dismiss

the petition. Section 53-21-123(2) (a), MCA. If the professional

person finds that commitment proceedings should continue, the

scheduled hearing should be held. Section 53-21-123(2) (b), MCA.

As we recognized in MatterofRM, "'Montana's civil commitment

laws are to be strictly followed.'" MutterofRM, 889 P.2d at 1204

(quoting MatterofU (1988), 231 Mont. 353, 355, 753 P.2d 319, 320

(citations omitted)). We also noted that these procedural

safeguards are of critical importance because of the "'calamitous

effect of a commitment [,I’ including loss of liberty and damage to

a person's reputation." Matter of R.M., 889 P.2d at 1204 (quoting

MatterofShennum (1984), 210 Mont. 442, 450-51, 684 P.2d 1073, 1078).

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In this case, the District Court failed to strictly follow the

statutory procedures for a civil commitment set forth at

§ 53-21-123, MCA, which require that, following the initial

hearing, the respondent be examined by the professional person

appointed at the initial hearing, and that that person immediately

notify the county attorney of his or her findings and file a

written report with the court. Contrary to § 53-21-123, MCA, the

court relied on Frazer's examination of D.H. which was performed

before the commitment proceeding was initiated.

The State contends that D.H. waived his right to challenge

procedural flaws on appeal because he did not object on that basis

in the District Court. We rejected that argument in MatterofR.M,

889 P.2d at 1204-05, and held that because substantial rights of an

individual are involved in a civil commitment proceeding, the

general rule relied on by the State is inapplicable. Matter of R.M ,

889 P.2d at 1205 (citing MatterofNB. (1980), 190 Mont. 319, 323, 620

P.Zd 1228, 1231).

We hold that the District Court erred when it failed to comply

with the specific requirements of § 53-21-123, MCA, and for that

reason reverse its order which committed D.H. to the State

Hospital. Because of this holding, we conclude it is unnecessary

to consider the remaining issues raised on appeal.

J stice

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We concur: