Nos. 87-391 and 87-537


### INTHE SUPREME COURT OF THE STATE OF MONTANA 1988

IN THEMATTER OF THE MENTAL HEALTH OF S. J., Respondent and Appellant.

IN THEMATTER OF T. I?., Respondent and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, Inand for the County of Flathead, The Honorable Leif B. Erickson, Judgepresiding.

COUNSELOF RECORD:
ForAppellant: Allen Smith,Jr., Warm Springs,Montana Mary Gallagher, Warm Springs,Montana
For Respondent: Honorable Mike Greely,Attorney General, Helena,Montana Robert F. Smith, AssistantAttorney General Ted 0. Lympus, CountyAttorney, Kalispell,Montana

Submitted on Briefs: March 3, 1988 Decided: April 11, 1988

vFiled: 

### APR 111988 

# -P' $8 -- 

# he .;e&&*wp& ClerkMr. 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'smotion 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 seriouslymentally illbut 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 toprotect 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 toWarm Springs StateHospital. 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 anddetermined 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 formalhearing. 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 StateHospital. 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' constitutionalclaims. 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 decision. these 2 rights may be waived 

### by his counsel and friend of respondent acting together if a recordismade of the reasons for tE - 

### ---- 

### -- waiver. The ri~ht to counselmav not be

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

### -- -- hysically present at a hearing may also gewaived 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.

[Emphasisadded.]

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 uDon ihich it found the re1- 

### -- spondent to be seriousTY mentally ill. 

### -- [Emphasisadded.] Appellants allege and the State ofMontana 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)theDistrict Court failed tomake a record of its finding of seriousmental illness. Appellants also allege the District Court erredwhen it failed tomake a record: (1) that appellantswere servedwith notice of thepending civil commitmentproceedings, §§ 53-21- 114, -115, and -121,MCA; (2)that appellants appeared at aninitial appearance and were advised of their rights, § 53-21-122,MCA; (3)that Gary G. Doranwas 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 appellantsand submitted
awritten 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 tonote 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 thebenefits of these rights. Therefore, we reverse the order of the District Court and order the District Court to make a contemporaneousrecord
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 thevalidity of appellants' contest- ed allegations of procedural errors and so indicate in its 

### - findingsand order. Reversed and remanded.We concur: