*1 IN THE MATTER OF THE MENTAL HEALTH OF K.G.F. No. 00-144.

Submitted on Briefs November 2000. August Decided 2001 MT 140. 306 Mont. 1. 29 P.3d 485. Jr., Smith, For For Allen Appellant: Helena. Mazurek, Respondent: Joseph Attorney Hon. P. Montana General, General, Tammy Plubell, Attorney K. Assistant Montana McGrath, Helena; County Attorney, Mike Michael Lewis and Clark Menahan, Deputy County Attorney, Lewis and Clark Helena. Opinion the Court. delivered the JUSTICE NELSON by the First Judicial District entered appeals the order K.G.F1. her to County, involuntarily committed Court, Lewis and Clark denied effective contends that she was facility. health K.G.F. a mental course of the assistance proceedings. proceedings. and remand for further We reverse K.G.F. raises Did *2 following issue: ¶3 of counsel ineffective assistance her counsel render Amendment under the Sixth rights guaranteed violation the United States her Article Constitution and Montana Constitution? BACKGROUND FACTUAL AND PROCEDURAL mental health of KG.F.’s undisputed that the condition It is ¶4 voluntarily led her to point a critical reached October seek treatment Helena, Hospital in Montana. Community at St. Peter’s 21, 1999. hospital on October into She was admitted is oftentimes bipolar disorder or what K.G.F. is afflicted ¶5 is a biochemical illness. The disorder manic-depressive referred to high reaches changes from the gross causes mood imbalance that has K.G.F.’s disorder been depression. lows of severe mania to the diagnosed “mixed” identifies The term rapid cycling.” as “mixed and mania features both episode kind of bipolar particular frequent refers to cycling” generally “rapid The term depression. severe and mania. depression episodes her disorder with K.G.F. controlled hospitalization, Up until her At the time she entered care. psychiatric and was under medication the treating psychiatrist her “fired” apparently had hospital, K.G.F. symptom of a suicidal, an uncommon which is not and was afflicted with has a disorder. She degree bipolar her kind episodes of suicidal history prior hospitalizations medical behavior. did not take that K.G.F. Testimony herein indicates beyond threatening to do so suicide attempting steps affirmative entirely Although not hospital.. at the voluntarily while committed person’s” “professional a medical clear, testimony as well as hearing one past, in the attempts suicide that there were actual indicate report as June of 1999. as recent ¶7 medications admission, with the disagreed K.G.F. After her medications. It is those and refused to take for her prescribed undisputed understanding quite adept intelligent, that she her disorder. managing in relation she takes the medications Against released from the advice, that she be requested she medical however, was hearing, she time of her By hospital. willing apparently her medication willing to take apparently necessary. if voluntary undergo further herein; published initials are purposely her Respondent’s not been name has privacy. purpose protecting throughout her for the used 26, 1999, county attorney mental disorder On October filed a deputy petition “alleging with the District Court requires made commitment.” The relied on petition findings request coordinator, McVean, Nancy a case at St. Peter’s who was also a certified “professional person” under primary MCA. The suicide, focus planned and concern was that K.G.F. to commit and that once released from hospital implement she would her plan. The reported indigent that K.G.F. was and therefore unable attorney, to afford an “presently and that she was detained” at the hospital. The petition requested that K.G.F. held hospital at the further evaluation and treatment until a took place. day, That same the District Court issued an order finding probable cause that K.G.F. had a mental requiring An disorder commitment. Counsel appearance according appointed pursuant was to this order. initial place day afternoon, took later that same some time in the reporter time, to a court entry. minute At that with counsel present, KG.F.’s constitutional were explained to her as well as the substantive effects of the A petition. hearing was set for the next 27, 1999, morning, on October at 11:30 a.m. professionals Two medical were testify called to at the hearing the day, next one the State and one counsel for experts K.G.F. Both had interviewed K.G.F. and reviewed her records. K.G.F. was also testify. called to Although present at the hearing, K.G.F.’s husband testify. was not called to McVean, the case coordinator who had requested the petition and *3 who in turn “professional served as a person” law, as required by recommended K.G.F., that based on her interview with K.G.F. should be committed community facility, to a opposed as Hospital the State at Warm Springs. Nancy Adams, who had spent approximately ¶12 one hour with K.G.F. before, day the few recommended that K.G.F. remain in the hospital for a days, so that a community-based plan treatment in Bozeman-nearer to where K.G.F. lived-could arranged. She “being testified that husband, pulled away from her support, closest her staying and in strange place might do more harm than good.” K.G.F. was called testify ¶13 on her own agreed behalf. She that the Bozeman option her, would explained be best for that she had private financial and insurance expenses. resources to cover the She “my further testified that every husband is there and he is with me night and every morning.” She voluntarily indicated that she would remain at the facility St. Peter’s until such arrangements could be worked out. fact, law, The court issued findings ¶14 its of conclusions of order day following that findings hearing. The court then issued an amended fact, law, 2, of conclusions of and order on November 1999. The latter finding, struck one prior was otherwise identical to the order. “began K.G.F., Hospital, Peter’s that while at St. The court found advice.” sign against out medical and desired

to refuse medications “mixed” and disorder bipolar suffered from Upon finding that K.G.F. herself,” the court injury an “imminent threat that she was ordered that she be Helena, the Health, in Triangle Mental committed to Golden “care, and evaluation of days for treatment period for a of 90 health needs ...” respondent’s mental fact, law, and order findings conclusions appeals K.G.F. ¶16 on the at the assistance of counsel she received ineffective grounds hearing. OF REVIEW STANDARD right of due of the constitutional issues Our review is questions of such of law and our review questions involves counsel plenary. Mont. 131, 7-8, MT Shelton-Thompson, ¶¶ v. See Pickens (1997), 603, 7-8; 283 Mont. 7-8, v. Okland 3 P.3d State ¶¶ ¶¶ 941 P.2d DISCUSSION matter, KG.F.’s contention agree we preliminary As a subject moot, longer K.G.F. is no controversy though even this to the issue of mootness was Although order. 90-day issue State, that the emphasize we nevertheless by the not contested was resolved Mont. (1980), 190 ago, time in In re N.B. by this Court some statute as stated (superseded part 620 P.2d 1228 1040). 300, 304-05, (1985), 217 Mont. In re J.M. there, here, Court “reserves to was that this reasoning Our the broad issues that involve examine constitutional power itself the N.B., of law.” In re litigation point on a to avoid future public concerns important 322-23, (concluding P.2d at 1230-31 Mont. at release by patient’s rendered moot were not questions constitutional observing that facility and mental health Springs Warm from involuntarily committed year each are 100 Montanans approximately facility). evaluation of treatment and for three months constitutional Thus, the claimed we conclude ¶20 effective assistance involuntary commitment in civil of counsel v. evading review.” Heisler yet “capable repetition, proceedings 45, 48 270, 275-76, 937 (setting 282 Mont. Hines Motor Co. standard). raised. to the issue Accordingly, proceed forth mootness PRESENTED ISSUE counsel assistance counsel render Did K.G.F.’s ineffective Amendment to the Sixth rights guaranteed under violation her Article the United States Constitution Montana Constitution? by appointed although she was argues K.G.F. assistance to effective Court, her constitutional District *4 involuntary commitment her the course of was denied proceedings. exists because right this claimed reasons K.G.F. of his an individual may deprive process involuntary civil custody and criminal likened to should be liberty, her and therefore

5 contends, therefore, incarceration. her She constitutional effective assistance of counsel flows from both the Sixth Amendment 24, the U.S. and Article of the Montana Constitution Constitution, scrutinized to this Court’s must be application of the Strickland test. foregoing The State and Amicus2 contend that the constitutional protections afforded individuals in criminal proceedings are not appropriate for the “unique legal undertaking” of a civil commitment K.G.F., proceeding. process argument. as an alternative position, concurs with this due Although clearly not agreeing as to what should constitute “effectiveness,” K.G.F., State, standard of and Amicus urge this Court to turn to the process foundation of the due clause under either constitution, the federal or our state an appropriate construct ensuring standard for the “fundamental fairness” of civil commitment (1992), proceedings. See In re W.M. 252 Mont. (stating that civil commitment purpose constitutes a significant deprivation liberty requires due process protection, citing Addington (1979), 418, 425, 99 v. Texas 441 U.S. S.Ct. 323, 330-31); (1984), 60 L.Ed.2d In re Shennum 210 Mont. 450-51, (stating that procedural safeguards in commitment cases were calamitous effect of a Legislature “inserted because of the deprivation commitment: a of a person’s liberty for up to three months ... and the inevitable damage person’s to a reputation”). (1992), See also Foucha 71, 80, 112 v. Louisiana 504 U.S. 1780, 1785, S.Ct. 118 L.Ed.2d 437 (stating that freedom from bodily restraint always has liberty been the core of the protected by the process arbitrary action); clause from governmental Mathews v. Eldridge 319, 334, 893, 902, 424 U.S. 96 S.Ct. 47 L.Ed.2d 18 (stating that due is “flexible and calls for such procedural demands”). protections particular as the situation This Court has not previously addressed whether a person subjected involuntary to an proceeding has counsel, and, so, constitutional to effective assistance of if how such effectiveness should be measured3. Advocacy Program The Montana filed an Amicus Curiae brief in this matter upon stipulation by parties. program private, non-profit is a civil organization designated protection advocacy system people state’s disabilities, including people with mental illness. The Montana American Civil Liberties signed Advocacy brief, Program’s Union Montana as well. states, Minnesota, Texas, Wisconsin, Other such as have to a measurable degree statutorily attorney set forth the duties of an (counsel See, proceedings. e.g., given adequate Minn. Stat. Ann. 144.4177 shall be prepare hearings “vigorous client”); time to for all and be a advocate on behalf of the 574.004(c) Safety (providing “[r]egardless Tex. Health & Code Ann. of an attorney’s personal opinion, attorney shall use all reasonable efforts within the proposed patient’s right bounds of law to advocate the to avoid mental court-ordered

6 right The to assistance A. effective by are Title governed commitments in Montana Involuntary civil 1975). (codified initial review of this 53, 21, Our Chapter MCA 53-21-101(4), MCA, expressly provides which guided by matter is § “seriously treatment of purpose ill” governing that one of our laws the that due of law is accorded mentally persons is to “ensure Further, under any person coming § provisions part.” under the of this 53-21-115, MCA, involuntarily person against who is detained or expressly whom a commitment due § is filed is afforded numerous by process rights including right represented the to be counsel. See 53-21-115(5), MCA; (judge appoint attorney MCA shall § **4 53-21-119(1), MCA to attorney).* (right person § if counsel has no See waived). not be implicitly turn, statutory rights explicitly foregoing federal and the Montana under both the garner protection constitutions. We of those addressing persons subject ¶28 all criminal counsel. however, K.G.F., protection that the disagree provisions constitutional rights express flows from the prosecution. to criminal provides that Amendment to the U.S. Constitution Sixth shall have the assistance of prosecutions, the accused 24, of the Montana Similarly, under Article Constitution, prosecutions” in all “criminal shall have the accused right by counsel. Where a criminal appear person to and defend right effective counsel has defendant claims his or her constitutional test, violated, applies two-part this Court Strickland derived been Washington e.g., Court decision in Strickland v. Supreme from the U.S. See, 2052, v. (1984), 668, 104 80 L.Ed.2d 674. State 466 U.S. S.Ct. MT 296 Mont. Berg, ¶ ¶ ¶ assistance ofcounsel test Strickland ineffective (identifying two-prong (1) demanded range competence acted within the as whether counsel of (2) deficient whether counsel’s attorneys in criminal cases services”); proposed patient expresses to avoid the Wis. services if the a desire health 51.20(3) subject (providing that the individual is Ann. that “court shall assure Stat. counsel”). by adversary represented 38, RCM, pertaining current law in Montana to to Title the forerunner of Under mentally ill, apparently implied right seriously patient had an the treatment of involuntary hearing, prior was not hut one “obtain” counsel by jury requested subsequent appointed, guaranteed If a trial was nor statute. attorney represent person, relative, county would committed Further, 38-213(2), decision in Petition this Court’s RCM. as evidenced place hearing could take “at the Kolocotronis 145 Mont. 38-201, say, hospital. Kolocotronis patient” RCM. Needless in the bedside of hearing-although present hospital the Court took notice at the did not have counsel challenged present-and appeal he his commitment to state that his mother was hospital on Although ruling Springs pro that Kolocotronis was at Warm se. counsel, opportunity other the Court did not address Kolocotronis’s to obtain “gather challenge opportunity witnesses to constitutional that he did not have challenge the commitment.” fair deny the defendant a defense so as to prejudiced performance trial). appellate court has K.G.F., least one other state argued As involuntary civil commitment to the applied Strickland adopted process. to due See In individual’s in order to secure an process re 1995), Carmody 653 N.E.2d (Ill.App.Ct. it reasoned that Carmody court to the extent agree with the We involuntary subject an individual statute affords where a state counsel, could not have right legislature with the Carmody, ineffective. See prejudicially intended that counsel could statutorily providing a that the State’s (holding at 983 653 N.E.2d respondent with the proceeding in an to the effective assistance includes implicitly to counsel that Strickland). In re Commitment citing See also (Penn. 1982), 1008, 1011 alleged that an (holding 454 A.2d Hutchinson *6 representation is entitled to effective incompetent mental counsel). competent Therefore, right that the to we hold statutes, subject to an provides an individual Chapter our Title involuntary proceeding right to effective assistance commitment turn, affords the individual with the of counsel. In this challenging counsel in allegation raise the of ineffective assistance of a commitment order. ¶32 resolved, as addressed question The fundamental that must be Amicus, is how effective counsel must be when parties involuntary facing who is an commitment. representing an individual inappropriate is an threshold B. The Strickland standard respects procedural process rights Although numerous are identical to involuntary patient-respondent of an commitment defendant, disagree with K.G.F. afforded an accused criminal we those of the Strickland standard Carmody application and the court that the We involuntary proceedings. civil commitment appropriate go does not far simply that the standard under Strickland conclude K.G.F., liberty of individuals such as enough protect interests law, who, upon but may or of a not have broken commitment, indefinitely badge must bear expiration of 90-day proven with a inferiority “involuntarily committed” of a once mental disorder.5 decision, that a court “must provides for example, The Strickland conduct falls within strong that counsel’s indulge presumption is, assistance; the defendant range professional ofreasonable wide must overcome circumstances, the that, under the the presumption See strategy.” sound trial might considered challenged action be mental, MCA, organic, or “mental disorder” means Under § cognitive individual’s impairment effects on an that has substantial adverse emotional or volitional alcohol alcohol, drug drugs functions, or or and does not include addiction retardation, epilepsy. intoxication, or mental (citation

Strickland, 466 U.S. at 104 S.Ct. at 2065 and internal omitted). quotations See also State v. Hanson 283 Mont. 327, 940 1166, 1173 (quoting Strickland, from observing U.S. Supreme warning Court’s “highly courts should be deferential” assistance). when guessing second counsel’s cursory Even a legal commentary review of reveals the flawed reasoning of applying foregoing Strickland involuntary standard to civil assistance” cannot proceedings. Namely, professional “reasonable presumed proceeding routinely accepts-and even requires-an unreasonably legal low standard of generally zealous, assistance and disdains adversarial confrontation. generally Perlin, Michael L. Assumption: Fatal A Critical Evaluation the Role Disability Cases, Counsel in Mental 16 Law (1992) & Hum. Behav. (identifying 53-54 Strickland standard as “sterile objectively perfunctory” “reasonably where effective assistance” is norms”) measured the “prevailing professional (hereinafter Perlin). Further, we disagree Carmody ¶36 analysis indicating with the court’s Strickland in involuntary proceedings “no likely issues are regarding respondent’s arise counsel’s failure to to adequately investigate trial, or prepare for or failure counsel’s pursue defenses or witnesses as suggested by Carmody, his client.” See 653 N.E.2d at contrary, 984-85. To the conduct of counsel those few prior available hours to an key or trial should be a counsel’s point inquiry focal as to whether the representation was effective. To this extent disagree with K.G.F. that the startling “most evidence that counsel’s deficient performance prejudiced [K.G.F.]was object counsel’s failure to hearsay testimony.” weight one objection questionable testimony missed in patient’s at hearing is minuscule comparison fully investigate the failure to comprehend prior circumstances to an involuntary civil commitment trial, turn, hearing between counsel matters, preparation prior may, which lead to critical decision-making *7 proceed. and client as to how best to Such pre-hearing infra, which shall be discussed clearly involve effective hearing to a or trial. agree We also with proving Amicus that the Strickland burden of ¶38 that counsel’s “deficient performance prejudiced the defense so as to trial,” deny contrary the defendant a fair prior to our case law that followed, mandates-that unless strictly civil commitment laws are See, (1993), e.g., commitment order must revérsed. be re Morlock (citations omitted). 499, 501, 415, 261 Mont. 862 P.2d 416 This argument by K.G.F., is also raised in alternatively arguing that a non- process analysis Strickland due would find counsel ineffective here as well. Finally, agree we with the State and Amicus that the 6th Constitution, II,

Amendment to the U.S. and Article Section pertain alone, proceedings although affording to criminal and that an “criminal” involuntary individual with certain process rights, due

9 invoke process provisions. does not those constitutional silent) 53-21-115(6), has the to remain (person MCA See § 53-21-115(7), by rules of (hearing governed MCA compare 53-21-126(3), matters); (proceedings MCA applicable to civil evidence Procedure). See also 53-21- governed by Montana Rules of Civil at civil commitment 126(2), (providing hybrid proof standards of MCA “clear and hearings: “beyond a doubt” and or reasonable trials convincing evidence”). Amicus, the due Thus, suggested by turn the State and process clause of Montana Constitution. rights process C. Due and fundamental provides Under Article the Montana Constitution life, liberty, of or without deprived property that “No shall be of law.” process due ¶42 starting it is safe to point, say purportedly protecting As a that involuntary subject of an individual an process rights the due 24 typically has less than proceeding-whereby on a to sever prepare hours to State seeks friends, infringe upon or physicians, the individual’s relations with family, legal or employment longer6-our for three months seemingly way in system judges, lawyers, of and clinicians has lost its of such vigilantly protecting rights the fundamental individuals. (1992), Mont. In re Mental Health L.C.B. safeguard (stating rights courts must every stage proceedings); involved In re J.B. individual 504, 511, (stating 217 Mont. discharge statutory judicial rigorous includes responsibility application mandates) (Morrison, J., dissenting). example, public appointed In the case defender subjudice, had, represent appearance K.G.F. from the close of the initial commitment hearing, at best or five commencement four working his usual load of criminal matters-to hours-amidst case only perfunctory process for what can be as a prepare lasted minutes. described has, an Legislature however, provided that expressly Our length Legislature, The 2001 under Bill No. doubled Montana Senate Now, involuntary 53-21-127(2), §to MCA. of certain commitments 53-21-127(3), MCA, suchasK.G.F., may patient-respondents, under what will become § “community involuntarily facility, program, appropriate or to be committed to a or treatment, requirements, housing for a to a include or residential course which period prior law, not more than Under 6 months.” “community facility, program, months. or course of treatment” could exceed three (iii) Further, (v), subparts through restrictive 466 struck which offered the “least SB out custody ordering respondent placed care in the alternatives” of institution, ordering guardian appropriate place than an or or other other relative some therapy, making appropriate effect outpatient other order for treatment. The some foregoing statutory on the at issue and of the discussion in this amendments constitutional us, opinion are not before however. *8 individual may be suffering who, from a mental disorder and result, may a involuntarily be committed must be afforded care and fully treatment respects person’s “dignity and personal integrity.” 53-21-101(1), MCA. Once § admitted to a mental health facility, whether voluntarily or involuntarily, patient a has right “privacy and dignity,” 53-21-142(1), under MCA.These legislative § mandates, constitution. turn, invoke fundamental rights under our state Respect for person’s dignity II, 4, invokes Article Section under constitution, this state’s which provides “dignity of the human being is Armstrong State, 261, inviolable.” See 72, v. 1999 MT ¶ 361, 72, 364, Mont. (stating ¶ that “[r]espect ¶ for the dignity of each individual--a right, fundamental protected by Article II, Section 4 of the Montana people Constitution-demands have for themselves the moral right and responsibility moral to confront the most questions fundamental about the meaning and value oftheir own

lives and the intrinsic general, value of life in answering to their own convictions”). consciences and One example of respect for a patient-respondent’s dignity, as provided by Legislature 53, under Title Chapter is the requirement person that the has a right “to be dressed in person’s any own clothes at hearing held pursuant to this part.” See 53-21- § 115(10), Implicit MCA. under Title Chapter notion that the hearing court, shall be conducted in a mental health facility, which dignity enhances the afforded to the individual. See §§ 53-21-115(2) MCA (respondent right has the present to be any trial); hearing 53-21-119(2), or MCA (affording respondent § right to waive presence hearing and indicating an “alternative location” for a hearing in “surroundings familiar to the respondent” appropriate)7. be In Armstrong, this Court identified an individual’s medical affecting “bodily decisions integrity” as a right fundamental under the personal autonomy component ofthe privacy constitutional set out in Article of the Montana Constitution. See Armstrong, Respect for a patient-respondent’s ¶ medical-decision personal autonomy has expressed by Legislature likewise been our 53-21-115(11) under MCA, provide § which person that a has Legislature, The 2001 Montana under Senate Bill No. established the use two-way hearing electronic audio-video communication for the initial under 53-21- 122, MCA; hearing 53-21-124, MCA, hearing the detention under trial or on a 53-21-126, MCA; hearing post-trial disposition under § on under 53-21- 127, MCA; hearing period, 53-21-128, MCA; on extension of a commitment under § hearing re-hospitalization conditionally 53-21-197, on of a released under § MCA; and a on an extension of the conditions of release under § two-way MCA Under Senate Bill No. the use of the electronic audio-video foregoing statutory communication is at the discretion of the court. The effect of the rights opinion amendments on the constitutional at issue and under discussion in this us, are not before however. voluntarily prior take medications refuse to either person of the by professional right to examined hearing, and the 53-21-115(9) 53-21-124(3), MCA. choice, respondent’s §§ are at issue fundamental That these constitutional *9 including prior to process, phases all of the obtained, is or is self evident. appointed counsel either hearing when likely the most Thus, provides the counsel agree “[qjuality that we the only likely way” process protection to ensure due as way-perhaps the such at bar. See dignity privacy and interests in cases one Perlin, at 47. Therefore, set forth reviewing procedural circumstances counsel, effective here for whether K.G.F. was afforded we assistance involuntary civil systemic failure of the must address obvious doing so, emphasize In hearing process itself. we that meant of the individual per what is not as a se indictment follows general; in these nor is appointed counsel here or matters involved, professionals it a of the individual tacit censure Rather, objectives have sound in mind. our undoubtedly therapeutic whole, aim through is of the as a system on the failure one that administration legal process of a ordinary course efficient process rights that serve supplant threatens to individual’s safeguard ¶50 liberty the fundamental interests discussed thus far. Accordingly, may jurisprudence we draw from the while collective statutes, of both federal and other state’s decisions and as well as an array commentary by scholars and we thoughtful practitioners, guiding comports must nevertheless articulate a Montana’s standard that with statutory framework, unique one that constitutional and placed protects liberty the fundamental of individuals whose is State action. by issue liberty patriae doctrine parens D. Individual and necessary articulating a effective it is In standard for recognize dispel stereotypes only certain that to frustrate and serve legal purports that secure the skillful and humane care suffering and treatment of individuals ¶52 from mental disorders. regard, Supreme In our to the California Court’s this citation (Cal. decision, Conservatorship 1979), P.2d in In Roulet re 210 Mont. is Shennum Shennum, significant. voiced the same concerns addressed Shennum, landmark court in its decision. See In re California 450-51, 684 (stating P.2d that the Roulet court “nailed Mont. at at 1078 liberty addressing deprivation person’s it down” in the detrimental of a may damage reputation that result person’s the inevitable to a commitment). from a civil years the Roulet court’s Although ago, decided more than 20 is mentally suspicion” ill still recognition relevant society See with “views Roulet, potentially at 6. Due to today. stigma from the “irrational fear of debilitating” that results “socially ill,” that a implausible “[i]t mentally posited the court about, after his totally go ill could person labeled the state as so

release, seeking employment, schools, applying to old meeting acquaintances reputation fully Roulet, with his intact.” 590 P.2d at 7. Thus, patient likely the “former mental to be treated with distrust loathing; socially even he ostracized and victimized employment and educational experience may discrimination ... the cause him to Roulet, lose self-confidence and self-esteem.” 590 P.2d at Our review of current concerning literature the treatment of the mentally ill presented by as again agree Amicus leads us to once “[i]n the California court that society, mentally the ideal ill would subjects understanding be the ignorance compassion rather than view, enlightened unfortunately, [b]ut aversion.... Roulet, yet prevail.” does not 590 P.2d at 6. Nevertheless, suggested by Amicus, as we are mindful such understanding ideals as and compassion expressed are in the Montana Rights, Constitution’s Declaration of as well as under Title Chapter 21, Huff, See, e.g., discussed thus far. Matthew O. Clifford & Thomas P. Thoughts Some Meaning Scope on the the Montana “Dignity” Constitution’s Clause with Possible Applications, (2000) Mont.L.Rev. (discussing application 330-32 dignity clause to persons treatment of under State supervision: “[i]t is natural to speak dignity of the inherent mentally persons, such... ill and to *10 speak of requirements that such persons vulnerable be treated dignity”); with to make Armstrong, (discussing 39¶ of each individual judgments affecting medical her or his bodily integrity and health in partnership provider with a chosen health care free from the interference government). very point contending ¶56 Amicus addresses this in that because the fundamental attached to within the “provider-patient decisions relationship” may and by parens be overridden the State’s patriae duties police power authority, the role of counsel is all the more critical where a patient involuntarily be The committed. threats liberty posed by involuntary commitment, individual according to Amicus, arise aat time “when the individual with a mental illness is against crisis, confusion, least able to defend them-during time of Winick, fatigue.” See also Brace J. Therapeutic Jurisprudence and the Civil Commitment 10 J. Hearing, Legal Contem. Issues 44-45 (1999) (observing that “[p]erhaps nothing person’s can threaten a belief society that he or she is an of equal being member as much as subjected to a civil hearing” “legal proceedings and when people do treat dignity, they with feel devalued as of members (hereinafter Winick). society”) ¶57 question regarding We therefore the State’s contentions how much process regard is due to K.G.F. with to effective counsel. State, According keep sights clearly to the this Court should its focussed on the balance between the State’s duties under parens doctrine-i.e., patriae obligation the “humanitarian” or benevolent protect those citizens unable to themselves-and the protect exercise health, police power protect general public and safety, welfare

13 persons by from afflicted injury the “imminent threat” morals from mental 307, 314, (1977), Sonsteng 175 Mont. 573 See In re disorders. 504, 509-10, 217 1149, 1153-54. In re J.B. Mont. See also “the never intended that (stating legislature 602 statutory must first shed before the people blood innocent be satisfied”). act’ definition of‘overt has been regard is Sonsteng cited the State in this decision and social our particularly spite instructive. In of scientific advances with mental disorders understanding and treatment individuals policy set forth under years-as expressed recent MCA-the Court law notion that common gave the all-too-familiar Sonsteng voice to State, sovereign in its role as “father of all ... authority general guardian to “act as the country,” retains 314, 573 Sonsteng, P.2d at 1153 idiots and lunatics.” In re 175 Mont. Co., (citing v. 405 U.S. quoting Hawaii Standard Oil (1972)). S.Ct. L.Ed.2d 184 labels-which, stereotypical The use of such as numerous ¶60 commentators class of citizens-is emblematic of inferior out, create reinforce an second- point helps the benign prejudice individuals with face, are, conclude, to our repugnant mental illnesses and which Perlin, “Sanism,” state SMU L. Rev. Michael L. generally constitution.8 See On (1992) (identifying prejudice toward the mentally among “well-meaning “quality ill citizens” as same racism, sexism, prevailing prejudices other such as character of bigotry,” legal turn is reflected in our heterosexism ethnic at which in Winick, system); (stating people a mental because “already marginalized stigmatized variety illness have been mechanisms, self-respect of social and their sense of their value as society legal them” special importance throughout members of proceedings). are of Nevertheless, concept regarding our of due state action surely mental involuntarily imposed on individuals with disorders has decision in Buck v. Bell. In progressed that who was the Supreme since U.S. Court’s woman,” case, Justice described Holmes a “feeble-minded white mother daughter “feeble-minded mother” and the of a “illegitimate feeble-minded child.” The Court declared woman, Feeble Colony Epileptics and who was committed to the “State Minded,” involuntarily could the “best interest sterilized society” and of patients because: world, waiting It to execute is better for all the if instead *11 crime, let them for their offspring or to starve degenerate manifestly are unfit imbecility, society prevent can those who 8 largely 38, RCM, repealed example, the time Title which was For “title” of 53, Chapter and Feeble-Minded.” Under 38- law in was “Insane Title became idiot, feeble-minded, 1969), as (repealed term “inmate” defined “an RCM was treated, trained, person cared for within a custodial epileptic insane or who institution.”

14 continuing

from enough. generations their kind .... Three of imbeciles are (1927), 200, 205-207, Buck v. Bell 274 J.).9 584, 584-85, U.S. 47 S.Ct. 71 (Holmes, L.Ed. 1000 we, enlightened However society, may as a have become in the years intervening Bell, since v. Buck we must nevertheless be signs cautious and critical of paternalism legitimized by the parens patriae doctrine, where State actors purport have an absolute understanding of what is in individual, the best interests of an whose liberty, dignity the swift and issue, privacy are at and whose voice is muted overriding authority ofcourt-appointed professionals. See generally J.B, In re the 217 Mont. at (stating P.2d at 603 although against proved “bizarre,” evidence J.B. him to be majority decision of the dangerous precedent “sets a for incarceration different”) (Morrison, J., of those deemed to be dissenting). As Justice Brandéis States, cautioned Olmstead v. “[ejxperience United should teach us to be guard most on our to protect liberty when the government’s purposes are beneficent.” v. Olmstead United States 438, 479, 48 564, 572-73, 72 277 U.S. (Brandeis, S.Ct. L.Ed. 944 J., Roulet, dissenting). also (stating “[i]t at 9 would be small a person solace to wrongly judged mentally incompetent that intentions”). his road to commitment was paved good recognize, all, We must after that an involuntary commitment is supposed a help, punish, “may suffering from mental disorder.” See MCA.See Addington v. Texas (1979), (providing 418, 428, 1804, 1810, U.S. 99 S.Ct. 60 L.Ed.2d 323 power that a state’s proceeding, a civil commitment sense). opposed to a prosecution, criminal punitive is not exercised in a scholars, As discussed legislated involuntary numerous must, public as a matter of policy, strive to “therapeutic maintain the legal system influence” of the on the generally Winick, individual. See “reconceptualize” at 52-60 (discussing the need to attorney-client in civil relationship effects”). proceedings to “augment potential therapeutic However, argued by Amicus, as a helping rather than the individual afflicted with disorder, legal system’s mental paternalistic influence too often turns such away individuals seeking from treatment due to the imminent Mental of involuntary fear commitment. See National Institute for Health, Department Services, U.S. of Health and Human Supreme challenge The U.S. Court’s Buck v. Bell decision involved a to the then predominant Montana, eugenical country. sterilization laws in effect in this Such laws in 38-601, RCM, seq., repealed see § et. which were codified in were not Legislature purpose until 1969. Montana’s sterilization, 38-608, RCM, physical, mental, under § was “for the betterment of the psychic inmate, protect society neural or condition of said or to from the menace of procreation by inmate, punitive said and not manner as a measure.” See also decision). (discussing Armstrong, eugenical 50¶ laws and the Buck v. Bell *12 (1999) General, (stating at 457 Surgeon A the Report Health: Mental need coercion should be reduced point is clear: the for “[o]ne readily are accessible significantly services adequate when danger threat pose a with severe mental disorders individuals to a should not be substitute others” and that “coercion themselves or voluntarily”). sought for care that is effective mind, Thus, imperative in it is that we foregoing with the constitutionally ¶64 construct steps the detailing deliberate a sound framework best effectively liberty his or her client’s protect counsel should take to herein-and particular the interests addressed interests-in hearing fair at a formal and adversarial ensure that the client receives 53-21-126(2), MCA; See proof. which the State the § bears burden Winick, 40. at Further, upon meaningfully respect incumbent courts to it is standards, fully in following requisite the exercise of the facilitate process rights due discharging of individuals “at safeguarding the the responsibility L.C.B., re every proceedings.” the See In stage Thus, in the imperative applying P.2d at it is Mont. at following that formally cases, bar, subsequent matter and all standards the at legislated rights herein are the constitutional and discussed fairly power protect with the State’s ultimate balanced public perceived both the individual and the from actual harm. civil counsel E. role of effective proceedings here, statutory our acknowledged parties As all concerned guidelines determining 53, Chapter Title offer little assistance scope of counsel requisite the duties effective Nevertheless, involuntary has Legislature the proceedings. for procedural opportunities pursue counsel clear a proceedings adequately adversarial role such serve analysis. process due framework our 53-21-122,MCA,counsel appointed, pursuant Once counsel is ¶67 “shall meet with the § respondent, explain petition, the ofthe substance See 53-21- explain probable proceedings.” the course the § 121(3), 53-21-165, fist of records that (providing MCA. MCA § attorney the “any charged representing must be available Ordinarily, hearing place the must take within patient”). five 53-21-122(2) and days respondent’s appearance. of a initial See § statute, however, may request MCA.Under this counsel additional time. MCA, 53-21-124(1), may the order detention of Under court § pending hearing requested a on the unless respondent county attorney probable cause for upon existence may time, patient-respondent At that counsel for detention. request Further, held forthwith.” hearing, a detention which “must be 53-21-124(3), MCA, patient-respondent counsel for the under § by professional object to the continued evaluation and treatment also person hearing. patient-respondent pending selected 53-21-125, MCA, may in lieu of a patient’s Under trial, hearing request jury “whereupon set for hearing time shall be vacated and the on matter set calendar jury court’s at earliest date possible, taking precedence the matter over all other matters.” Upon finding patient-respondent that a requires commitment, a court a post-trial “disposition” hearing, must hold 53-21-127(2), Apparently, bar, MCA. in the case this mandatory second hearing simply was with the on combined petition, pursuant to MCA. In order to further enhance protections under statutory foregoing mandates, suggests, adopt as Amicus certain portions of the National Center for State Courts’ Guidelines Involuntary Disability Physical Civil Commitment. See 10 Mental and *13 (No. 51986) (hereinafter Guidelines).10 Reporter, through

Law Thus, 409 514 following the critical areas shall to scope serve better define the of effective representation involuntary in proceedings, under Article of the Montana Constitution. Appointment of competent counsel 53-21-122(2) (3),MCA, Under and if a finds judge probable § cause for for petition, the commitment immediately “counsel must be appointed respondent.” In the light foregoing statutory mandate, we following guideline: add that To course eligible appointment, for attorneys specialized should have training, or have supervised on-the-job training received duties, skills, in the of representing and ethics civil commitment respondents. Guidelines, minimum, Part E1 At at 464. a bare counsel should possess verifiably competent understanding legal process commitments, alternative, range as well as the less- available, restrictive treatment and care options pursuant to 53-21- § 127(2), (listing MCA evaluation and treatment options court impose following a disposition hearing, including involuntary medication). Further, law requires state that the “desires of the respondent must be taken into appointment in consideration the ... confirmation of the 53-21-122(2), the attorney,” under In § MCA. the case bar, at example, “desires,” as an there no any is evidence that such informed, which patient-respondent, an knowledgeable would indicate decision Therefore, were ever taken into it consideration. court, upon counsel, critical that the district appointment provide the patient-respondent describing and clear concise information attorney’s qualifications name and the patient order for to then Physical Disability Reporter published and bimonthly The Mental Law prepared American Bar Association. The were Guidelines a National Task Force Disability Law, the National Center for State on Courts Institute Mental and the and Disabled, multi-year project. Mentally resulted from a See also ABA Commission on the Prepare Involuntary Hearing, How to Commitment Civil No. Prac. Law. for (1991). counsel, accept appointed to to decision as whether make an informed request the on reasons good compelling shown and based cause or representation. or retain alternative of different appointment investigation 2. The initial 53-21-165, MCA, attorney has a a patient-respondent’s Under § 53-21-115(2), Further, under § the client’s records. right MCA, access to evidence, right has to “offer patient-respondent Also, the concerning person.” proceeding present witnesses “know, the names hearing, has before a patient-respondent of a testify support any witnesses who will and addresses of on file with the copy petitions to “view and all and the petition” (3) 53-21-115, MCA. of § under subsections court” ¶74 Therefore, patient, with a required meeting and after before 53-21-121(3), MCA, thorough counsel should conduct review under § necessarily must involve the inquiry of all available records. Such treatment, history if and to extent what patient’s prior medical commitment, has in the played medication patient’s the involved that the without a role community, and relationship family and friends within the professionals patient’s with all relevant medical relationship sum, conclude petition process. prior 53-21-115, MCA, patient-respondent afforded diligent, and well-informed competent, the assistance of stage investigatory the commencement of the critical counsel at meaning. involuntary commitment would have little process, Thus, his her client counsel should be discuss with prepared investigations, as as the options light of such well the available Guidelines, options.” See legal consequences of those “practical Part 53-21-127(2), 465; imperative E2 It MCA. is likewise investigation of time for such an request a reasonable amount 53-21-122(2) petition, pursuant or trial on the prior *14 (3), MCA. and interview, to or the initial client counsel should following Prior knowledge to have persons interview all attempt also circumstances members, family petition, including surrounding the commitment any persons by identified the client acquaintances and other information, persons call such having prepared relevant and be to as as E5(c) Guidelines, Again, Part at 474. counsel should See witnesses. a amount of time for such an freely investigation prior liberally request reasonable and hearing petition, pursuant to (3), or trial on the the 53-21-122(2) and MCA. § 3. The client interview 53-21-121(3), MCA, the counsel “shall meet with Under § explain and the explain petition, the substance of the respondent, Commentary by indicated the proceedings.” course the As probable Guidelines, attorney of an are an the services “prehearing to indispensable prerequisite interests.” respondent’s a protecting 1.2(a), Guidelines, at also Rule Commentary, Part E5 475. See (a lawyer by a Professional shall abide Montana Rules of Conduct representation and shall concerning objectives client’s decisions consult as by client to the they means which are to be pursued); Rule 1.14 (providing ability when a client’s to make adequately considered decisions in connection representation with the impaired, minority, whether disability because of mental or for some reason, shall, other the lawyer reasonably as far possible, as maintain client). a ¶78 client-lawyer normal relationship with the foregoing following guideline: To the we add the The initial client interview should be private should conducted in be sufficiently held hearings scheduled before permit client. preparation prehearing effective assistance to the added). Guidelines, E5, Part 473 (emphasis In addition to explaining petition ¶79 and client, the various at issue to the counsel should also ascertain, if possible, a clear understanding of what client would like to happen forthcoming see in the commitment proceedings, whether it arguing petition, seeking voluntary be for dismissal of the status, formulating negotiating and then with the State commitment, a least-restrictive alternative to or agreeing to a State- 53-21-127(2), recommended court-ordered commitment. See (listing options MCA § may impose following that court a disposition hearing). guideline The recognizes understanding may above such take time, medication, additional due to the client’s mental condition and and scheduled request therefore counsel need to continuation of a a. 53-21-122(2) hearing, pursuant and MCA. § Further, it is critical that through course interviewing should client, discuss and determine a jury whether trial pursued, pursuant be MCA. It is incumbent upon counsel to facilitate the exercise right, client’s under 53- §§ 21-115(9) 124(3), MCA, “be examined a professional person of the person’s choice” and to determine whether the evaluation and treatment should objected 53-21-124(3), to. MCA. Finally, See § counsel should discuss hearing, whether detention 53- pursuant to § MCA, 21-124(1), pursued. should be 4. The to remain silent MCA, 53-21-115(6), A patient-respondent, has the right attaches, pursuant introductory to remain silent. This to the “involuntarily language, against when detained or whom turn, provision potentially is filed.” In this conflicts with § 53-21-123(1), MCA, requires which the initial after “must respondent professional be examined person without delay.” unreasonable Generally, this court-ordered “examination” serves to establish necessary commitment, evidence indicated the report bar, submitted to the court in case at which identified status,” “mental background,” KG.F.’s mental “present through criteria, a list “yes” commentary. “no” and a handwritten 53-21-123(1), professional person, MCA, may up take *15 complete four hours to the examination. via patient-respondent, is for the that it critical We conclude ¶83 voluntary knowing to make a to be allowed assistance prior to the commencement his or her to remain silent waiver or, alternative, 53-21-119(1), MCA, in the examination, see § of this that counsel must be criminal a' similar to the “examination” present emphasize again that deposition. a We interrogation or civil any cannot be waived. See §' under circumstances the to counsel therefore, patent it would be a conclude, that MCA. We “examination,” 53-21- provided as for the violation as MCA, the assistance counsel conducted without be herein. adversary 5. Counsel as an advocate attorney representing patient-client an To extent an what adopt should an “adversarial” involuntary posture proceeding legislatures and among debate state subject is a extensive commentators, noticeably Chapter is from Title absent statutes. earlier, statutory adopted express have As indicated other states See, Stat. Ann. 144.4177 defining e.g., this role. Minn. provisions client”). (counsel As the on behalf of the “vigorous shall be a advocate attorney fails to act Commentary “[w]hen the states: an Guidelines stance, passive paternalistic an or as advocate assumes attorney usurps judicial system upset, the defense balance of Guidelines, role, goes Part E2 position and the defendant’s unheard.” (internal omitted). Commentary, quotations at Accordingly, agree approach we Guidelines well Texas, attorney “represent role of the is to proper taken perspective that the respondent vigorous and to serve as a advocate for E2, Guidelines, wishes.” See Part at 465. Further: respondent’s unwilling express To the extent client unable or wishes, position that personal attorney should advocate the safeguards best and advances the client’s interest. Guidelines, E2, Additionally: Part courtroom, attorney engage aspects in all should ability her advocacy vigorously argue to the best of his or by the client. the ends desired Guidelines, F5, Part at 483. guidelines presumption that a client foregoing create committed. The ultimate decision involuntarily to not wishes be committed, involuntarily should be patient-respondent whether a therefore, made counsel. See Tex. independently should “regardless of an (providing Ann. Safety Health & Code 574.004 attorney shall use all reasonable attorney's personal opinion, proposed patient’s of law to advocate the efforts within the bounds if the proposed mental health services right to avoid court-ordered services”). to avoid the patient expresses desire Thus, foregoing guidelines, to the conclude advocated otherwise independently evidence commitment-in the absence acquiesced to an *16 voluntary evidence of a knowing consent by patient- the respondent-will establish the presumption that counsel was ineffective. statutory One final ¶89 consideration a post-trial is whether “disposition” hearing days permitted utilizing should be conducted separately, the five- 53-21-127(2), pursuant Again, to MCA. a continuation fully

to examine assert a “least at a restrictive alternative” second hearing pursued by interest, be in the client’s best and therefore should be necessary. counsel when F. Conclusion summary, In we hold right ¶90 that the as provided under 53, 21, Title Chapter provides subject an individual to an involuntary proceeding right the to effective of assistance to counsel. right This affords the individual with the right allegation raise the ofineffective assistance of challenging commitment order. We hold foregoing ¶91 further that five critical areas of of define, representation effective counsel generally but not exclusively, scope II, pursuant 17, Article Section of the Montana turn, Constitution. In afforded individuals under the foregoing liberty must protect standards serve to the fundamental individual dignity integrity interests of as identified under Title Chapter Constitution. We hold that II, and Article Sections 4 and of the Montana upon evidence, substantial showing presented court, issuing Court, to the district or this pursuant 53- MCA, 21-131, that counsel effectively represent did not the patient- respondent’s of pursuant standards, interests to the foregoing an order involuntary commitment should be vacated. holding today, so again emphasize here that it is not only courts, counsel for the patient-respondent, but that are charged duty with safeguarding the due process stage individuals at every involved proceedings, must rigorously herein, therefore adhere expressed standards as well as those ¶93 Chapter mandated under Title Finally, Court, the record before this particularly any evidence of pre-hearing investigation, the critical Accordingly, is insufficient. this is finding matter reversed and remanded for a fact further proceedings opinion. consistent this GRAY, CHIEF JUSTICE JUSTICES LEAPHART and REGNIER concur.

JUSTICE TRIEWEILER dissents. I dissent majority’s from the decision to reverse the order of the District Court- and remand proceedings for further to determine whether K.G.F. received effective assistance of counsel. Although disagree I by with the ultimate result arrived I majority, opinion. disagree do not majority with most of what is said in the agree example, person subject involuntary For I that is when illness, commitment for mental that has a effective II, assistance of counsel to Article Section ofthe Montana independent of the Sixth agree I Constitution. and Article to the United States Constitution Amendment I v. Constitution; and that Strickland agree the Montana 2052, 80 668, 104 is not (1984), S.Ct. L.Ed.2d Washington U.S. effective assistance analytical evaluating a counsel was tool for whether helpful provided. effective determining whether agree general I ¶97 assistance proceeding, in a commitment of counsel has been the National it is to consider five factors established appropriate civil commitment. Center State Court Guidelines However, vary will from I those five factors application believe disagree with the depending case to case on the circumstances and way they majority. have been imposed formalistic which investigation necessary depend the extent of the will example, For initiating allegations made greatly on the nature of the authority time and there no need for this Court decide ahead of investigation each should include. The nature and what details of exchanged at the client extent useful information can on health depend large interview will client. to a extent the mental *17 I a to Although disagreement providing have no with court-appointed professional counsel the examination I person,. think it inconsistent that someone involved a civil person’s protection for proceeding which is own Fifth a greater to which no to Amendment attach is afforded than is afforded in a remain silent and assistance proceeding punishment criminal where the ultimate result State, 46-48, 301 imprisonment. See v. 2000 MT Mont. Dawson ¶¶ 46-48, I Finally, 46-48. believe that while ¶¶ ¶¶ an in a play counsel had proceeding, procedural safeguards adversarial role to civil obligation is that all primary I believe that counsel’s to see its burden are followed and the State meets proof. purpose proceedings The people suffering secure skillful and humane for from a treatment danger makes them a to themselves or others. mental disorder which without stigma While no one should have to bear of mental illness process being process, require afforded full due does to harm himself or herself in person’s evidence of a effective intent suppressing Involuntary advocacy. I the name believe that Montana’s necessary provide Act sets forth the basic elements Commitment guaranteed by of the Montana due Constitution. Those ¶99 evidence in the record that K.G.F.’s Article 53-21-115, elements found at MCA. are I find no majority opinion is that can My problem with There is counsel was ineffective. transcript, appeal nor briefs filed on pleadings, no indication K.G.F. were procedural rights statutorily afforded to of the Furthermore, it is of counsel. denied based on ineffective assistance held to its hearing that the State was transcript clear from the from a mental disorder which that K.G.F. suffered proving burden well being. her own threatened The complicated. issues this case were not that Proceedings Nancy McVean, were initiated when case coordinator St. Peter’s Hospital, county attorney notified the that K.G.F. suffered from a which, mental disorder when her combined with refusal take medication, made her danger to her well being. own McVean reported 19,1999, that on discharged October K.G.F. her psychiatrist reported to his officethat a plan she had to kill herself. After her sheriff, threat was reported to the agreed voluntarily she commit However, herself St. Peter’s Hospital. having disagreement after over medication that prescribed, was she announced her intention to leave. the opinion Peter’s, of the health care staff at St. she did not improve hospitalized while a high was at if risk suicide she left hospital Therefore, without further care. the petition for 26,1999. commitment was filed on October petition complied with 53-21-121, all requirements MCA, of § and no one contends otherwise. ¶101 Immediately filed, appointed after the was counsel was to represent pursuant and, K.G.F. to 53-21-116 most importantly, she was an independent professional examination MCA. At the following which was held the day, State produced testimony Nancy from McVean who described the history which led K.G.F. and further hospital reported an actual suicide attempt by K.G.F. a matter four months earlier. reported She diagnosis of bipolar disorder and expressed opinion that K.G.F. danger was a to herself because of her suicidal inclinations. McVean community recommended a commitment as least restrictive alternative to stabilize KG.F.’s condition before discharging her to out-patient aftercare ¶103 prescribed on an services basis Bozeman. drugs McVean was cross-examined about the which had been Hospital for K.G.F. at their St. Peter’s side effects. Adams, Nancy ¶104 Counsel K.G.F. then called independent professional person, disputed opinion McVean’s that K.G.F. was agreed threat to herself but that she should treated further before being released from hospital. Adams disagreed community commitment to a facility necessary. healthcare was It was her opinion that following period voluntary treatment at the *18 hospital, K.G.F. could be successfully outpatient treated on an in basis Bozeman. K.G.F. testified and agreed that she needed treatment. However, her preference was to receive treatment from clinical professional psychiatrist and already Bozeman with whom she was familiar. Importantly, disagreed neither nor ¶106 diagnosis reported by Adams K.G.F. disputed McVean. Neither that K.G.F. had previously attempted again suicide June and threatened suicide two days before her admission to the hospital. obligation Counsel had an effectively, to serve his client however, representation effective change reality. cannot a civil question person’s about a proceeding, if there is no commitment the fact that no about question mental disorder and herself, argue is for the least then counsel left danger presents exactly That is what KG.F.’s form of commitment. restrictive did. presented by the Court listened to the evidence The District ¶108 State on person called K.G.F.’s independent professional and the during K.G.F. opportunity to observe The District Court had behalf. her refusing to follow prior history her testimony and consider and voluntary following threats of suicide through with the State’s witness rather than accept the recommendation of chose KG.F.’s witness. findings are not one contends that District Court’s No anyone does its evidence nor claim supported conclusions of substantial is majority opinion law incorrect. Nor in the there are counsel. any ¶110 inadequate performance K.G.F.’s example Having five-part this. criteria My adopted concern is mean that does this now evaluating effective assistance every proceeding, separate hearing will following be civil commitment experience civil required to determine the extent counsel’s his initial the nature extent of proceedings, his investigation, client interview? detail from the record and in this record apparent None there these facts will nothing any responsibilities is these were to indicate that inadequately. distinguished Howthen this case to be from performed in general principles any appealed civil commitment the future? I in the agree with the established While fill majority’s guarantee efforts to majority opinion applaud subject those to civil and consistently capable representation people some voluntary practical there is proceedings, I am concerned about particularly disagree that majority opinion effects of the any reversing remanding basis for District Court’s record, I no thoroughly reviewing case. can find order evidence that this After attorney ineffectively represented K.G.F. acted denied to which she procedural or that K.G.F. was entitled Title from II, 17 the Montana Constitution and to Article Therefore, I Chapter Part of the Montana Code. dissent decision to the order of District Court majority’s reverse proceedings. District Court for further and remand