NO. 94-407 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

IN THE MATTER OF THE MENTAL HEALTH OF A.H. Jl!N 19 1995 Respondent and Appellant.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD: For Appellant: Lonnie Olson, Allen Smith, Jr., Mental Disabilities Board of Visitors, Montana Advocacy Program, Warm Springs, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena, Montana; Mike McGrath, Lewis and Clark county Attorney, K. Paul Stahl, Deputy Lewis and Clark County Attorney, Helena, Montana

Submitted on Briefs: June 13, 1995 Decided: June 19, 1995 Filed:

Clerk Justice Fred J. Weber delivered the Opinion of the Court.

The appellant, A.H., was detained in the Lewis and Clark County jail pursuant to criminal charges. She was taken from the

jail to St. Peter's Community Hospital on January 10, 1994. Nancy

Cobble prepared a mental evaluation report on January 10, 1994, and

requested that a petition for the civil commitment of A.H. be

filed. On January 10, 1994, a Petition for Involuntary Commitment

was filed in the First Judicial District Court, Lewis and Clark

County, alleging that A.H. was seriously mentally ill and

requesting her commitment. The Petition requested that the court

find that the January 10 report prepared by Nancy Cobble was

sufficient to meet the requirements of § 53-21-123, MCA. An initial appearance was made in the First Judicial District

Court on January 10, 1994, and the court ordered that the report

attached to the Petition completed by Nancy Cobble was sufficient

to meet the requirements of 5 53-21-123, MCA. No professional

person was appointed by the court at the initial appearance to

examine A.H.

A hearing was held before the District Court on January 11,

1994, at which time the District Court concluded A.H. had a mental

disorder of "psychotic episode" and found that because of her

current mental disorder and her recent behavior, A.H. was deprived

of the ability to protect her life or health. A.H. was committed

by the District Court to the Montana State Hospital by its order of

January 11, 1994. A.H. has appealed contending that she was deprived of her

right to liberty without due process of law and that she was

committed to Montana State Hospital in violation of mandatory

statutory safeguards. In substance, A.H. contends that § 53-21-

122, MCA, requires the appointment of a professional person and

that § 53-21-123, MCA, provides as a mandatory requirement that

following the initial hearing the respondent shall be examined by

such professional person. A.H. contends that these statutory

mandates were disregarded. The District Court failed to appoint a

professional person and ordered that the report completed before the initial hearing was sufficient to meet the statutory mandate.

The Attorney General of the State of Montana has filed a

Notice of Concession which states that this case does involve the

appeal of commitment of A.H. pursuant to 55 53-21-122 and 123, MCA. The Attorney General points out that the sole issue is whether the

proper statutory procedures were followed. The Attorney General

further points out that under In re R.M. (1995), 52 St.Rep. 68, 889 P.2d 1201 and In re D.H. (1995), 52 St.Rep. 294, this Court has

rejected the same commitment procedures which were used in the

present case. The Attorney General therefore concedes in behalf of

the State of Montana that the District Court decision should be

reversed.

This Court concludes that no further procedure is required in

the present case.

We hold that the District Court erred when it failed to comply with the specific requirements of §§ 53-21-122 and 123, MCA; and

3 for that reason this Court reverses the order of commitment of A.H. to Montana State Hospital at Warm Springs, Montana.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to the

West Publishing Company.

Reversed.

Justices / June 19, 1995

CERTIFICATE On..I... *.A? -1 QF~vT~’

I hereby certify that tl it: following certified order was sent by United States mail, prepaid, to the 1tillowing named:

Lotie. J. Olson . Me.ntaI Disabilities Board of Visitors P.O. Box 177 Warm Springs, MT 59756

Hon. Joseph P. Mazurek Attome! f General - - _. . Justice blag. Helena, MT 59620

Mike McGrath County Attorney L & C County Courthouse Helena, MT 59624

ED S: ---- MITH CLE& LK OF THE SUPREME COURT STATE OF MONTANA

I-. - Deputy