*1 SHENNUM, of ALAN RAY the MATTER Respondent. No. 83-308. Jan. 1984.
Submitted June 1984. Decided P.2d 1073. *3 W. Charles Paterson, Marsillo, Schuyler, & Tornabene Missoula, Elison, appellant. for Schuyler Larry argued, Smith, Asst. Gen., argued, F.W. Atty. Greely, Mike Robert III, County L. Gen., Helena, Deschamps, Atty. Robert County Missoula, Slomski, Deputy Atty., argued, Robert Missoula, Atty., respondent. for Opinion of the SHEEHY the
MR. JUSTICE delivered Court. of District order the an Ray appeals
Alan Shennum District, County, commit- Court, Missoula Fourth Judicial for Hospital confining Springs him Warm State ting and to period three months. of follow failed to in the state this case determine it when upon the state imposed statutory safeguards the charge of on the the sought commitment of the mandates ill, failure seriously mentally such being and that any proceed- in reversal this forth case. We set future ings proof imposed upon in the burden of the state such jurors necessary cases, verdict, the number to reach a respondent’s respecting and answer the instruc- contentions given tions to the this case. evening April early
On 25, 1983, the Shennum arrived City meeting for a scheduled of the Missoula Council and public seated himself to next Neil R. Smith in the section of the council’s chambers. Smith noticed that Shennum was wearing over his shirt an holster unconcealed shoulder at- body by ropes, tached to his and that the shoulder hol- pistol. ster he carried .45a caliber semiautomatic began talking saying to Smith Shennum was the process putting stop voting to women and that women public going should not be allowed to hold office.He was to accomplish through legislation. this When Shennum asked many city council, Smith how women were Smith report presence decided that he had better of Shennum feigned in the council chambers to the officials. He an ex- leaving city reported cuse for council chambers and City situation to a woman at the Police Office in the same building. building Smith then left the because he antici- pated trouble. City
The Missoula Police Officers surrounded the council keep eye meantime, chambers an on Shennum. police arriving one of the officers informed of the members city city emergency council. The council held an caucus passed emergency another room and ordinance make except possess gun city unlawful, officers, law delay building. getting Because of the council meeting people began leaving time, at the scheduled including got chambers, council Shennum. When he to the custody by door, council chamber Shennum was taken into *4 pistol. immediately two officers who him of his disarmed fully Police officers determined was loaded and cocked it fully with a live round the chamber and with a loaded clip carrying of seven a rounds. addition Shennum was fully clip in his shirt loaded extra of .45 caliber ammunition pocket. by
Shennum was then taken the officers to an interview questioned police department room in the where he was forty thirty The officers at- the officers for tempted minutes. him and to as- obtain some identification city purpose being certain council chambers his gun. his a had identification on with loaded Shennum no gave printed his business card which other than a he was address not name and which stated that but his government re- Shennum would consultant to and business. government agencies. ply only that he worked for all police positive difficulty getting identification officers had they parked car which was from Shennum until went to his pro- city building. car, From Shennum near council gave duced license other material his driver’s police positive identification. charged placed or with
Shennum was not under arrest although police weapon. offense his Shennum retained requested weapon, police but the officers the return of his indicated told him returned. Shennum that would not be get anyway. might gun that he another presented Stripped gun, no further of his Shennum either community danger threat to himself or others duty, police doing because he or the officers were not their precaution. night any further was released into the without police did not It officers seems safe assume that ignore duty, in Shen- no further threat fact their but saw gun. taken his No had been num without further action again ap- police morning, when the next headquarters, gun peared police requesting at returned to him. happened absolutely on the is of what
The record bare appeared April morning to retrieve 26, when Shennum gun. occurred at the time. to what No testified as morning, however, in the he came It clear when through request made was Shennum was detained and *5 the county attorney’s office for Shennum’s mental examina- Lear, tion Dr. Charles E. psychiatrist. a Missoula The doctor came to jail 26, the morning April the and in- terviewed Shennum for day 35 to 40 minutes. Later Shennum was transferred to the mental health unit of St. Patrick’s Hospital Missoula, Dr. Montana and Lear con- ducted a second interview of Shennum at the hospital on the following morning, April date, 27. On that Dr. Lear sub- mitted a report on prepared a form. placed He a “X” on appropriate places on the form to indicate that Shennum suffered from a mental disorder which cognitive affected his or functions, volitional and that the least restrictive situa- tion which provide would him adequate supervi- care and sion was commitment to Springs Warm Hospital. State April 27,
On the day, same county attorney pe- filed a tition alleging serious mental illness of Shennum and asking for his commitment to a facility mental health for not exceed three months. On day the court signed also detention order requiring Shennum to be detained at the hospital until further order of the court. The minutes of the court reflect that brought Shennum was before the District Court with his court-appointed counsel and his court-ap- pointed friend, and was there rights by advised of his court. The court at appointed that same time attorney represent friend, Louden, Donald protect interests, Marks, and Michael professional W. person of Shennum’s choosing to him testify examine at the hearing before the court. May The court set for a hearing petition. on that
Shennum’s counsel request filed a jury for a trial and the matter on 10,1983. came jury May trial before a on 11, 1983, returned a May verdict on that Shennum was seriously mentally ill. After a hearing, further the order of commitment was signed by May judge district 1983.
We will refer to other proceed discussing facts as we issues.
I. seriously men The statutes for intelligibility or tally present ill do a model of person not however, is clarity. them, the concern of What is clear around legislature safeguards placed procedural serious power of the to commit a state mental illness. “seriously may the definition
That concern be found ill” “a mental disorder which itself. It is defined as mentally others or the injury injury or has resulted in self-inflicted deprived has or which imminent threat thereof *6 Section protect his life or health.” ability afflicted of the to as injury defines 53-21-102(14), MCA. The same statute in- person may be physical provides It that no injury. also de- facility or voluntarily to a mental health committed suffering from a mental he is tained evaluation because for seriously him to be the condition causes disorder unless Section ill of the definition. mentally meaning the within 53-21-102(14), MCA. Shen- began proceedings against state claims that of Section provisions in emergency
num this case under the of that statute 53-21-129, pertinent portion MCA. The provides: may exists, peace officer situation emergency
“When an mentally ill seriously appears be any person who to take danger to illness and as a result of serious mental time to only custody to himself into others or sufficient If evaluation. emergency professional contact prior be called person should possible, professional added.) taking custody." (Emphasis the into earlier, the is bare what the record As we have said morning the that police at the station situation was to evaluate detained, Dr. called Lear Shennum was and Dr. from only, and that from the record him. know city jail to Lear, come to the had that he been called testimony at in his report In his and examine Shennum. or injury threat physical no reports Dr. Lear hearing, physical injury county jail reported at in morning, in presence. report to him or his In fact he relied his and proof im- testimony represented as that Shennum an injury, reports minent threat of on the that Shennum had come city night gun, to the council the with a before loaded days and county that some earlier he had come to the upon courthouse and had filed his will. Those are the facts which Dr. Lear based his evaluation presented an imminent physical injury. threat of The rec- shows, however, ord police that from the time the took the gun from any against he made no kind threat anyone himself else. During period or of time that he inwas hospital, trial, April throughout kept he hospital open door, was a room with an free to open wander out into nearby. area The nurses had been out, advised that if attempted he to break that he should be allowed to do they simply so and should dial 911 to get emergency help. Nothing of that sort occurred. There is no showing any record therefore of circumstances existing on the morning April 1983 involving Shen- num which would call to play emergency provisions of 53-21-129, Section MCA. It also clear from the record prior at no time Lear, Dr. his examination or until appeared such time as he April court on Shennum was advised of rights. Entirely his constitutional *7 from lacking 26, the finding by April record is a Dr. Lear on 1983, an emergency city that jail. situation existed at the requisite That was a for the further detention of in this emergency case under the statute. Section 53-21- 129(2), MCA.
If emergency no morning April existed on the of we exist, have no procedure evidence that did then the one adopted by in the state however committing proper been, him may deprived the commitment have of procedural the safeguards up the set in legislature has the statutes when no For emergency situation exists. absent an emergency, duty county attorney the of was the through 53-21-121 53- proceed Section accordance with seriously 21-126, MCA, order to commit Shennum as mentally person. ill 53-21-121, attorney, upon written county the
Under the forth the request any person, may petition setting file of petition required Although the information that section. the re- by county attorney the in this case stated that filed we by petition, Dr. of the quest filing was made Lear for the for pro- Dr. Lear request by find no written the record attorney county the ceedings Apparently to be instituted. examination relying report was the form of the medical on incorrectly obtained Dr. been submitted Lear which had situation. purported emergency the Shennum under duty of filed, it the the district petition After the was was probable cause petition and to find judge to consider 53-21-122, doubt that MCA. We have no therefrom. Section but there was probable petition, forth cause was set effect. finding judge district no the record “the re- which indicate that There are minutes of the court April by the Court” spondent rights was advised of his be advised requires 1983. The statute that Shennum (ap- “part” this rights his under rights, 53-21-115, under meaning procedural rights parently MCA) petition.” Section and “the substantive effect of the 53-21-122(2), that Shennum Again the record bare MCA. was so advised. may 53-21-124, MCA, court provides that
Section the hear respondent pending not order the detention upon the attorney and ing “requested by county unless Shennum’s Here probable existence of cause detention.” but request hearing, detention counsel did not should be be one of the which should before the appearance his first informed of at the time of court. commit steps in a procedural importance of these in were safeguards These exaggerated.
ment case cannot be effect of the calamitous legislature because serted *8 451 deprivation liberty up commitment: a of a person’s (a extended) three and the period may months which be person’s inevitable to a damage reputation. The California Supreme only Court has nailed it down when it said: “One imagine experienced by competent horror falsely appre- in mentally committed as disturbed order to ciate openly that freedom is trial a civil at commitment (Cal. Estate Roulet proceeding.” 1979), 3d Cal. Rptr. 425, 427, Cal. 590 P.2d 3. It apparent is from the commitment the in- statues that tention of the legislature is that a will be charged rights advised of and other before an order for by professional person his mental evaluation case, made. this on April when Shennum was advised 27, 1983, by the District rights, already Court it was too late. His mental evaluation a doctor had occurred on day before. respect the intention legislature providing protective safeguards in commitment cases. Because those safeguards were not observed handling state of Shennum’s commitment, we reverse the commitment here.
Nothing this opinion prevent shall held to the state from proceeding properly to determine whether Shennum is seriously mentally ill after Although remittitur.
this case broke no law in carrying openly pistol a loaded into chambers, the council appear that does not to be nor- (We mal story behavior. remember of the masked bank pointed said, robber a gun who at bank teller and “Give your me money teller, and act normal.” The who had bank normal.”) said, taken Psychology 101 “Define Whether any proceedings future him similar actions constitute others, imminent threat a trier to himself or we leave to of fact.
II. There are since issues raised this case which we discuss possibility future commitment there is a of some proceedings. since a
Counsel for Shennum contends that depriving mentally being seriously ill has the effect *9 rep- damage liberty to his of his and committed though proceed- utation, as criminal the result is as serious ings brought against Therefore, contends, him. counsel were proof to Shennum of on the state commit the burden proof beyond a doubt. should have been reasonable By reasoning ver- contends that the the same kind of he by jury of two- of instead dict should be unanimous jurors. thirds of the as he which is
Shennum cites the rule California controlling are contends, We but no statute. California has by provisions MCA, 53-21-126, controlled of Sections any hearing proof in and which out of sets the standard provides by jury, must concur which also on trial two-thirds seriously mentally finding ill. in the that the is governed provides trial The statute further that the shall by the Montana Rules of Civil Procedure. required proof in a commit-
The of the state standard of hearing ment this:
“(2) pursuant proof any hearing held The standard of proof beyond re- a doubt with reasonable to this section is any physical spect con- and clear and to facts or evidence except vincing matters, mental all evidence as to other cer- reasonable medical disorders shall be evidenced a injury tainty. injury or Imminent threat of self-inflicted sufficiently by acts, recent overt others shall be evidenced respon- as to in time as to be material and relevant 53-21-126(2), (Section present MCA. dent’s condition.” the “trifur also contends that Counsel forego legal persuasion in the of set forth cated” standard confusing jury. apply impossible ing to a statute is (Mont. N.B. contention, however, Matter We met that 1980), St.Rep. we 2031, 2034. There 1228, 1231, P.2d 37 of “reason- here, use forth, that the statute’s set and iterate able certainty” only a med- medical means standard ical witnesses testifying proceedings. proof stated that of mental reasonable medi- disorders a certainty cal is sufficient if with other evidence case, the trier of facts is led to the conclusion that the seri- ous proof. mental illness exists clear and convincing facts, course, physical Proof proven beyond must be a reasonable doubt under the statute. Addington v. Texas (1979), 418, 441 U.S. 99 S. Ct. L. Supreme Ed. 2d the United States Court
stated that convincing proof’ “clear and is somewhere be preponderance tween proof a beyond of the evidence and reasonable doubt. No the term is nec further refinement of essary, opinion. difficulty our in advising We see no convincing proof that must find clear and person charged is suffering serious mental illness. words “clear fairly and convincing” import well defined concepts which sitting capable otherwise *10 Addington per jury should have no difficulty grasping. mits degree proof that of in commitment proceedings. permits
Since the statute proceedings governed be Procedure, the Montana Rules of Civil provisions statutes, Rules, of the of the and a two-thirds jury verdict legislative are a sufficient indication intent of and we will not require an increased for a jurors number commitment verdict.
III. need, contends, is no as counsel for Shennum There jury instructed that a should be advised involuntarily his before he is de tained or examined. Procedural matters are not matters for jury necessary to determine. Nor is it for the District Court protec to instruct the constitutional all tions out in set the Montana Constitution or the federal duty respect constitution. The court’s with to instructions is only to state as case not to applicable the law to the
give abstract instructions. Court
Shennum also the District contends any limine granted quash should have motion doctor police statements or to the made Shennum to see no petition before the his commitment was filed. We of police he made to the prejudice the statements incident, except of course that gun ficers on the of the night not wandering. These are the statements erratic and were why such state incriminating se and there is no reason per any proceed given jury. ments could not be future re undoubtedly he will have to be ings against Shennum are as far as a examined so his statements to Dr. Lear moot future proceeding concerned.
IV. case, from appears appeal After the was filed in this for further petition County was in Powell briefs that filed have proceedings and that there detention stayed pending appeal. this Because we reverse been County, de- from his further original commitment Missoula MCA, 53-21-128, is improper. tention under Section Ray Shen- therefore the commitment of Alan reverse Court in Missoula through num order of the District direct County, on remittitur we and if he is still detained proceed with all county attorney County to of Missoula Shen- speed procure deliberate the release origi- depends on the insofar further num as his detention herein County. Nothing nal commitment Missoula matter. in this proceedings properly further followed bars JUSTICES and MR. MR. CHIEF JUSTICE HASWELL *11 HARRISON, concur. WEBER GULBRANDSON MORRISON, dissenting:
MR. JUSTICE First, placed is is a reliance majority opinion mystery. The 219, Cal. Estate (Cal. 1979), Cal. 152 Roulet 3d upon Supreme the California Rptr. P.2d wherein Court eloquently stated that freedom was openly on trial a civil commitment proceeding. The California Court held that, liberty stake, where is at as a civil pro- ceeding, rights constitutional attach affording right to a unanimous jury “proof beyond verdict and a reasonable doubt.”
In rejecting Shennum’s contention that he is entitled to a unanimous verdict requirement and a the State prove the beyond case doubt, a reasonable the majority then distinguishes the Roulet case. majority states:
“Shennum cites the rule in California which is as he con- tends, but California has no controlling statute. We are con- trolled provisions 53-21-126, MCA, Sections which sets out the standard of proof any hearing and which also provides on by jury, trial two-thirds must concur in the finding that seriously is mentally ill. The statute provides further the trial shall governed by be the Montana Rules of Civil Procedure.” all,
First of the majority is wrong. The California case did involve the constitutionality of California statutes which al- lowed the taking liberty in a “civil commitment” pro- ceeding without benefit process of due guarantees afforded suspects. criminal Secondly, elementary constitutional law teaches that statutes in conflict with the Constitution can- Therefore, not stand. if constitutional rights attach to one threatened with loss of liberty in a “civil pro- commitment” ceeding, then statutes in conflict rights with those must necessarily fall.
The majority further confuses by saying: the issue “It is apparent from the commitment in- statutes that tention of the Legislature is that a charged will be his Constitutional advised of and other rights before an order for his mental professional evaluation added.) made.” (Emphasis
Again, it seems elemental if rights have they attached accorded, must fully the statutes notwith- standing. The majority seems to concede that Shennum has *12 yet liberty rights is threatened where his say rights in the statutes. are defined seems to those Nonsense. liberty facing deprivation in a civil commit- panoply proceeding, of con- to the
ment should be entitled include the accused. These stitutional afforded an right right counsel, unanimous silent, remain beyond prove requiring case the State verdict and reasonable doubt. majority is unusual is unclear. The case result longer retry. nothing incarcer- is no
there is nullity simply is a I that what went before ated. would hold consti- with well established and the statutes which conflict principles tutional are void. dis- will file a written SHEA dissents and
MR. JUSTICE sent later.