Nos. 87-391 and 87-537 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN THE MATTER OF THE MENTAL HEALTH 

OF S. J., 

Respondent and Appellant. 

IN THE MATTER OF T. I?., 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen Smith, Jr., Warm Springs, Montana 

Mary Gallagher, Warm Springs, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Robert F. Smith, Assistant Attorney General 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Submitted on Briefs: March 3, 1988 

Decided: April 11, 1988 

vFiled: APR 1 1 1988 -P' $8 -- he .;e&&*wp& 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

S. J. and T. F. appeal separate orders of the Eleventh 

Judicial District Court, Flathead County, involuntarily 

committing appellants to Warms Springs State Hospital. 

On February 23, 1988, we granted the State's motion to 

consolidate the appeals of S. J. and T. F. Neither party 

disputes the facts surrounding this appeal. 

On August 8, 1987, appellant S. J. was detained pursuant to a mental health hold. Section 53-21-129, MCA. On 

August 8 and again on August 10, 1987, a psychologist, Dr. 

Mary K. Kunde, examined S. J. and determined that S. J. was 

seriously mentally ill but not a danger to herself or others. 

On August 12, 1987, Dr. Kunde again evaluated S. J. and found 

S. J. to be seriously mentally ill and "unable to protect her 

life or health in the community." Dr. Kunde recommended 

involuntary commitment. Subsequently, the State filed a 

petition for involuntary commitment. 

On August 13, 1987, S. J.'s court-appointed attorney, 

Robert B. Allison, and S. J.'s friend, Gary G. Doran, waived 

S. J.'s right to a formal court hearing. Section 53-21-119, 

MCA . The District Court, after considering Dr. Kunde's 

evaluation and the above-mentioned written waiver, found 

S. J. to be seriously mentally ill and ordered her involuntarily committed to Warm Springs State Hospital. 

On October 26, 1987, appellant T. F. was also detained 

pursuant to a mental health hold. Section 53-21-129, MCA. 

On October 27, 1987, Dr. Kunde evaluated appellant and determined that T. F. was not seriously mentally ill and did not 

appear to be an imminent threat of danger to herself or 

others. 

On October 28, 1987, T. F. was again detained pursuant 

to a mental health hold. Dr. Kunde evaluated appellant and 
determined that T. F. was seriously mentally ill and appeared 

to be an imminent threat of danger to herself. Dr. Kunde 

recommended involuntary commitment. Subsequently, the State 

filed a petition for involuntary commitment. 

On October 29, 1987, the District Court appointed 

Robert B. Allison attorney for appellant and Patrick D. 

Sherlock friend of appellant. Sections 53-21-116 and -122, 

MCA. Subsequently, Allison and Sherlock waived T. F.'s right 

to a formal hearing. Section 53-21-119, MCA. On October 30, 

1987, the District Court, after considering Dr. ~unde's 

evaluations and the written waiver, found T. F. seriously 

mentally ill and involuntarily committed T. F. to the Warm 

Springs State Hospital. 

On appeal, T. F. and S. J. allege the District Court 

committed procedural errors which require the reversal of 

their respective involuntary commitment orders. We agree. 

Additionally, appellants raise two constitutional 

issues. Because we are reversing on statutory grounds, we 

decline to address appellants' constitutional claims. Taylor 

v. Taylor (1975), 167 Mont. 164, 168, 537 ~.2d 483, 485. 

Previously, we held that Montana's civil commitment 

laws are to be strictly followed. In the Matter of T.J.F. 

(Mont. 1987), 747 P.2d 1356, 1357, 44 St.Rep. 2145, 2146; In 

the Matter of the Mental Health of R. J.W. (Mont. 1987) , 736 

P.2d 110, 113, 44 St.Rep. 770, 774. The statutes at issue, 

53-21-119 and § 53-21-127, MCA, provide in pertinent part: 

53-21-119. Waiver of rights. (1) A 

person may waive hisrights, or if the 

person is not capable of making an 

intentional and knowina 2 decision. these 

rights may be waived by his counsel and 

friend of respondent acting together if 

- a recordis ---- made of the reasons -- for tE 

waiver. The ri~ht to counsel mav not -- be ~-- 

waived. The riGht to treatment Grovided 

for in this part may not be -waived. 
(2) - The right -- of the respondent to -- be 

hysically present at a hearing may also 

- ge waived by his atGrfiey and the friend 

of respondent with the concurrence of a 

professional person and the judge upon a - 

finding supported facts that: 

(a) the presence of the respondent at 

the hearing would be likely to seriously 

adversely affect his mental condition; 

and 

(b) an alternative location for the 

hearing in surroundings familiar to the 

respondent would not prevent such adverse effects on his mental condition. 

[Emphasis added.] 

Post-trial disposition. 

[2 (c) 1 . . . The court shall consider 

and shall describe in its order what 

alternatives for treatment of the respondent are available, what alternatives were investigated, and why the 

investiqated alternatives were not 

deemed suitable. The court shall enter 

-- into the record a detailed statement of 

the facts 1- uDon ihich it found -- the respondent -- to be seriousTY mentally ill. 

[Emphasis added.] 

Appellants allege and the State of Montana concedes the 

following procedural errors : (1) The District Court failed 

to make a record of appellants' waivers of a formal hearing, 

§ 53-21-119, MCA, and (2) the District Court failed to make a 

record of its finding of serious mental illness. 

Appellants also allege the District Court erred when it 

failed to make a record: (1) that appellants were served with 

notice of the pending civil commitment proceedings, §§ 53-21- 

114, -115, and -121, MCA; (2) that appellants appeared at an 
initial appearance and were advised of their rights, 

§ 53-21-122, MCA; (3) that Gary G. Doran was appointed friend 

of respondent, S. J., § 53-21-122, MCA; (4) that Dr. Mary 

Kunde was a certified "professional person", 5 53-21-105, 

MCA; and (5) that Dr. Kunde examined appellants and submitted 

a written report, § 53-21-123, MCA. 

The State contends that establishment of a contemporaneous record is not required by $5 53-21-105, -106, -114, 

-121, -122 and -123, MCA. Therefore, an evidentiary hearing 

is necessary to establish violations, if any, of these statutes. We agree with the State's contention that a contemporaneous record is not required by these statutes. However, 

the District Court is required to note in its order of involuntary commitment that appellants have received the benefit 

of all applicable statutory and constitutional rights. In 

the case at bar, the record is bare of whether appellants 

received the benefits of these rights. 

Therefore, we reverse the order of the District Court 

and order the District Court to make a contemporaneous record 

as required by 55 53-21-119 (1) and (2) and 53-21-127 (2) (c) , 

MCA. Additionally, we remand this cause and order the District Court to determine the validity of appellants' contest- 

- ed allegations of procedural errors and so indicate in its 

findings and order. 

Reversed and remanded. 
We concur: