                                                                                     December 19 2007


                                      05-568

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   2007 MT 351



IN THE MATTER OF
THE MENTAL HEALTH OF D.V.,

         Respondent and Appellant.


APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and For the County of Cascade, Cause No. BDI-2005-0122
                 Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

          For Appellant:

                 Brian Bulger (argued), Bulger Law Offices, Great Falls, Montana

          For Appellee:

                 Hon. Mike McGrath, Montana Attorney General, John Paulson (argued),
                 Assistant Attorney General, Helena, Montana

                 Brant Light, Cascade County Attorney, Mary Ann Ries,
                 Deputy County Attorney, Great Falls, Montana



                                               Argued and Submitted: June 14, 2006

                                                            Decided: December 19, 2007


Filed:

                 __________________________________________
                                   Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Following a jury trial in the District Court for the Eighth Judicial District, Cascade

County, D.V. was involuntarily committed to the Montana State Hospital (MSH) for 90

days. The District Court also ordered that MSH could administer medications to D.V.

through injections without D.V.’s consent. D.V. appeals. We reverse and order the

District Court to vacate the commitment order.

¶2     D.V. raises the following issues on appeal:

¶3     1. Whether counsel rendered ineffective assistance in violation of D.V.’s rights

under the Sixth Amendment to the United States Constitution and Article II, Section 24

of the Montana Constitution.

¶4     2. Whether the District Court erred in allowing the testimony of the appointed

“friend” of D.V. when the court had earlier deemed that the “friend” had a conflict of

interest.

¶5     3. Whether the examination and evaluation by the court-appointed professional

person satisfied statutory guidelines.

¶6     Because we determine that Issue 2 is dispositive, we do not address Issues 1 and 3.

                          Factual and Procedural Background

¶7     On June 24, 2005, D.V., a 48-year-old man, was arrested for partner and/or family

member assault and detained at the Cascade County Detention Center (the CCDC). D.V.

allegedly threatened his mother when she refused to give him a checkbook which she

indicated was for an account that had been closed. While incarcerated, D.V. refused to

sleep, refused his medications, and was reportedly suffering a full-blown manic episode.


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¶8     On June 30, 2005, the Cascade County Attorney filed a Petition for involuntary

commitment alleging that D.V. appeared to be suffering from a serious mental illness that

rendered him a danger to himself and to the community. The Petition requested that the

District Court order D.V. to undergo a mental health evaluation. The Petition also

requested that, if it was determined that D.V. was mentally ill, the court order that he be

involuntarily committed to a mental health facility for treatment.

¶9     The District Court held a hearing on July 5, 2005, to determine whether D.V.

should undergo a mental health evaluation. D.V. was represented at the hearing by Vince

Van der Hagen of the Cascade County Public Defender’s Office. D.V. interrupted the

proceedings several times stating, among other things, that he wanted to act as his own

attorney, and calling the judge a “jackass.” At the close of the hearing, the court found

that there was probable cause to believe that D.V. was seriously mentally ill, thus the

court appointed Dr. Mark Mozer, a Great Falls psychiatrist, to conduct an examination.

In addition, the court ordered D.V. to be transported to the psychiatric unit at MSH for

detention pending further court appearances. Following the hearing, the District Court

issued a written order for Dr. Mozer’s evaluation and appointed D.V.’s mother to be the

“friend of respondent” pursuant to § 53-21-102(8), MCA.

¶10    On July 11, 2005, Carl Jensen of the Cascade County Public Defender’s Office

filed a motion for a confidential mental health evaluation of D.V. by another professional

person of D.V.’s choosing. The court granted the motion. On July 13, 2005, Matthew

McKittrick of the Cascade County Public Defender’s Office advised the court that he and

Dr. Mozer had gone to the CCDC for the purpose of conducting the court-ordered mental


                                             3
health evaluation of D.V., but D.V. was uncooperative to the extent that Dr. Mozer was

unable to complete the evaluation.1 In addition, D.V. refused to communicate with

McKittrick and told him that he was fired.

¶11    A jury trial was held on July 25, 2005, regarding D.V.’s involuntary commitment.

Lawrence LaFountain of the Cascade County Public Defender’s Office represented D.V.

during the trial. During a conference with counsel and D.V. prior to voir dire, the court

addressed several matters raised by D.V. and LaFountain. D.V. wanted a continuance of

the trial claiming that he had been assaulted by the staff at MSH and that he needed to

have a blood test for an alleged infection and an examination by a doctor for alleged

injuries. The court noted that D.V. did not appear to have any injuries, hence the court

declined D.V.’s request to be sent to the emergency room.

¶12    D.V. also claimed that the presiding Judge, the Hon. Julie Macek, had a conflict of

interest because she had prosecuted a prior involuntary commitment case against him.

Judge Macek stated for the record that she had no recollection of D.V., and LaFountain

agreed that there was no legal conflict of interest.

¶13    In addition, D.V. complained that he did not know who LaFountain was, that

LaFountain had not called him during the previous week, that he was firing LaFountain,

and that he wanted to represent himself. D.V. also complained about LaFountain’s

failure to subpoena any witnesses, but LaFountain responded that after reviewing the file,

there were no witnesses he wished to subpoena for D.V. LaFountain also stated that he


1
  D.V. was transported from MHS to the CCDC solely for the mental evaluation. He was
returned to MHS immediately following his meeting with McKittrick and Dr. Mozer.

                                              4
would not be calling the doctor who had conducted the independent evaluation of D.V.

¶14      LaFountain informed the court that D.V. wanted to act as co-counsel and that

LaFountain believed it would be detrimental to D.V.’s case, especially if D.V. could not

refrain from interrupting the proceedings. LaFountain also advised the court that D.V.

was behaving toward him in the same manner as he had behaved toward the other

attorneys in LaFountain’s office. LaFountain stated his belief that D.V.’s detrimental

behavior would continue and that D.V. should be removed from the courtroom during the

trial.

¶15      The District Court determined that i t was in D.V.’s best interests to have

LaFountain represent him as LaFountain had a considerable amount of experience in such

cases. Consequently, the court denied D.V.’s request to fire LaFountain and represent

himself. The court advised D.V. that the trial would proceed in an orderly fashion, that

D.V. had a right to be present during the proceedings, and that if D.V. disrupted the

proceedings, the court would admonish him outside the presence of the jury, but would

not remove him unless D.V. refused to behave and follow the court’s rules.

¶16      During voir dire, D.V. repeatedly interrupted the proceedings with questions,

comments, and accusations.       D.V. attempted to dismiss the entire jury panel at the

conclusion of voir dire and made several remarks about certain prospective jurors. The

District Court declared a recess and engaged D.V. in a lengthy discussion, outside the

presence of the jury, in an effort to reduce D.V.’s outbursts and to allow him to remain in

the courtroom.

¶17      When the trial resumed, Dr. Mozer testified that his mental evaluation of D.V. was


                                             5
limited by D.V.’s refusal to cooperate, which Dr. Mozer attributed to D.V.’s mental

illness. Dr. Mozer further testified that he had provided care for D.V. since November

2004 and was familiar with D.V.’s mental health history. Dr. Mozer stated that D.V.

suffered from a schizoaffective disorder, a mental illness with features of both a mood

disorder and a psychotic mental illness. Dr. Mozer described D.V.’s symptoms and the

recent progression of his illness, opining that in his present state of mind, D.V. posed a

danger to himself and to others. Dr. Mozer recommended that D.V. be committed for

mental health treatment. He testified that he considered local outpatient and inpatient

programs and rejected them as unsuitable to D.V.’s needs, especially since D.V. failed to

participate in the past and refuses to participate at the present time.

¶18    The State attempted to call D.V.’s mother to testify about the incident which led to

the assault charge and subsequent petition against D.V. LaFountain moved to disqualify

her because she was serving as the court-appointed “friend” pursuant to § 53-21-102(8),

MCA. The court agreed that as both the complaining witness and the “friend,” D.V.’s

mother had an inherent conflict of interest. Consequently, the court granted LaFountain’s

motion to preclude her from testifying.

¶19    Thereafter, the State asked the court to appoint a different “friend” for D.V. so that

D.V.’s mother could testify, but the court refused. The court did grant the State’s motion

for a short recess so that it could locate additional witnesses.

¶20    In addition, LaFountain informed the court that D.V. wanted to put himself on the

witness stand against LaFountain’s advice and LaFountain inquired of the court whether

D.V. could be kept from testifying if LaFountain and the “friend” agreed that he should


                                               6
not. The court noted that § 53-21-119, MCA, provides that if the respondent is not

capable of making an intentional and knowing decision about waiving his rights, those

rights may be waived by respondent’s counsel and the “friend” of respondent, acting

together, as long as a record is made of the reasons for the waiver.

¶21    After trial resumed, the State called Robert Neal, a detention officer at the CCDC.

Neal testified that when he attempted to assist one of the nurses at the CCDC in giving

D.V. his medications, D.V. threw a bag of feces at him. The State also called Kathy Ann

English, a social worker at CCDC, and Laurel Andercheck, a nurse practitioner at CCDC.

They both testified to D.V.’s manic behavior while at CCDC describing D.V. as being

agitated, angry, aggressive, hostile, abusive, and out of control. Andercheck also stated

that D.V. hollered non-stop and refused to take his medications.

¶22    LaFountain did not present any witnesses or exhibits on D.V.’s behalf.

LaFountain told the court, in chambers, that D.V. was becoming more agitated and

combative as the trial progressed and that he would concede that D.V. suffers from a

serious mental illness. LaFountain indicated that he had discussed D.V.’s condition with

D.V.’s mother, the appointed “friend,” and that he decided to waive the remainder of the

jury trial and proceed directly to the commitment hearing.

¶23    D.V.’s mother was called into chambers to make a record of her agreement with

LaFountain. She stated that D.V. was not competent, that he was unable to make rational

decisions, and that he was not capable of making an intentional and knowing decision

about whether he should testify. She also expressed her agreement with LaFountain that

the proceedings should be ended and that the court should consider the issues of


                                             7
commitment and placement.

¶24    D.V. interrupted continuously throughout this conference, making various

accusations and threats against his mother and LaFountain. LaFountain informed the

court that D.V.’s own expert had concurred with Dr. Mozer’s assessment of D.V.’s

mental condition. LaFountain stated, and the State concurred, that under the statutes and

relevant case law, it was appropriate to waive further jury proceedings.

¶25    The District Court determined that there was a sufficient record to substantiate the

allegations of the Petition. The court agreed that D.V. was suffering from a mental

illness that was being aggravated by the trial proceedings. In addition, the court found

that D.V. was not capable of making an intentional and knowing decision in his best

interests at that point in time. Consequently, the court excused the jury and proceeded to

consider whether D.V. should be committed to MSH or treated at a local facility. In that

regard, the State argued that D.V. should be committed to MSH, while LaFountain

argued that D.V. should be treated at a local facility such as Benefis in Great Falls or

Pathways in Kalispell.

¶26    In its Findings of Fact, Conclusions of Law, and Order for Commitment to

Inpatient Mental Health Care filed July 25, 2005, the court determined that D.V. was

suffering from a mental disorder as defined in § 53-21-102(7), MCA; that he was unable

to provide for his own basic needs of food, clothing, shelter, health and safety; and that

he posed an imminent threat of injury to himself and to others. The court concluded that

the least restrictive placement for D.V., after considering all the alternatives necessary to

protect D.V. and the public, and to permit effective treatment, was to commit D.V. to


                                             8
MSH. Thus, the court issued an Order committing D.V. to MSH for 90 days. The court

also ordered that, if necessary, the attending physicians at MSH could administer

medications to D.V. through intra-muscular injections or other prescribed means without

D.V.’s consent.

¶27    D.V. appeals the District Court’s findings, conclusions and order.

                                  Standard of Review

¶28    Our review of the constitutional issues of due process and right to counsel

involves questions of law and our review of such questions is plenary. In re Mental

Health of K.G.F., 2001 MT 140, ¶ 17, 306 Mont. 1, ¶ 17, 29 P.3d 485, ¶ 17 (citing

Pickens v. Shelton-Thompson, 2000 MT 131, ¶¶ 7-8, 300 Mont. 16, ¶¶ 7-8, 3 P.3d 603,

¶¶ 7-8; State v. Okland, 283 Mont. 10, 14, 941 P.2d 431, 433 (1997)).

                                       Discussion

¶29    D.V. asserts that even though a determination in his favor on any of the three

issues presented will not assist him since his commitment to MSH has expired, the issues

are not moot. On that basis, D.V. maintains that a determination of the issues raised here

will assure that D.V., and others facing similar involuntary commitment in the future,

will have their right to counsel more fully protected, will help set out guidelines for the

appointment of “friends,” and will give direction for mental health evaluations.

¶30    “Mootness is a threshold issue which we must resolve before addressing the

substantive merits of a dispute.” Havre Daily News, LLC v. City of Havre, 2006 MT 215,

¶ 31, 333 Mont. 331, ¶ 31, 142 P.3d 864, ¶ 31 (citing Grabow v. Montana High School

Ass’n, 2000 MT 159, ¶ 14, 300 Mont. 227, ¶ 14, 3 P.3d 650, ¶ 14). “ ‘A matter is moot


                                            9
when, due to an event or happening, the issue has ceased to exist and no longer presents

an actual controversy . . . . A question is moot when the court cannot grant effective

relief.’ ” Havre Daily News, ¶ 31 (quoting Shamrock Motors, Inc. v. Ford Motor Co.,

1999 MT 21, ¶ 19, 293 Mont. 188, ¶ 19, 974 P.2d 1150, ¶ 19). An issue “will not be

considered moot if it is ‘capable of repetition, yet evading review.’ ” Heisler v. Hines

Motor Co., 282 Mont. 270, 275, 937 P.2d 45, 48 (1997) (quoting School Dist. No. 4 v.

Bd. of Personnel App., 214 Mont. 361, 364, 692 P.2d 1261, 1263 (1985)).

      In order to prove that a given situation is capable of repetition, yet evading
      review, a party must show:
      (1) the challenged action was in its duration too short to be fully litigated
      prior to the cessation or expiration of the action; and
      (2) there was a reasonable expectation the same complaining party would
      be subjected to the same action again.

Heisler, 282 Mont. at 275-76, 937 P.2d at 48 (citing School Dist. No. 4, 214 Mont. at 364,

692 P.2d at 1263).

¶31   In Matter of N.B., 190 Mont. 319, 620 P.2d 1228 (1980), N.B. was involuntarily

committed to Warm Springs State Hospital for three months of evaluation and treatment.

We concluded in that case that the important constitutional questions presented there

were not rendered moot by N.B.’s release from the hospital. N.B., 190 Mont. at 322-23,

620 P.2d at 1231.     Similarly, after K.G.F. was involuntarily committed to Golden

Triangle Mental Health, she contended that she was denied effective assistance of

counsel during the course of the commitment proceedings. We concluded in K.G.F. that

the controversy was not moot even though K.G.F. was no longer subject to the 90-day

commitment order because the claimed constitutional right to effective assistance of



                                           10
counsel in civil involuntary commitment proceedings is capable of repetition, yet evading

review. K.G.F., ¶ 20.

¶32    We agree with D.V. that the important questions presented here are not rendered

moot by his release from MSH. D.V.’s 90-day involuntary commitment to MSH was too

short in duration to allow the issues presented to be fully litigated prior to his release.

Moreover, there is a reasonable expectation that D.V. could be subjected to the same

action again in the future. Hence, the issues presented here are capable of repetition, yet

evading review. Heisler, 282 Mont. at 275, 937 P.2d at 48. Having determined that this

case is not moot, we proceed to the dispositive issue raised by D.V.

¶33    Whether the District Court erred in allowing the testimony of the appointed
       “friend” of D.V. when the court had earlier deemed that the “friend” had a
       conflict of interest.

¶34    The District Court appointed D.V.’s mother as his “friend” under § 53-21-102(8),

MCA, to act in his behalf in “dealing with legal proceedings, including consultation with

legal counsel and others.”     D.V.’s mother, however, was also the individual D.V.

allegedly assaulted, which conduct brought about the commitment proceedings. On that

basis, LaFountain moved to bar her from testifying at trial about the assault incident. The

court agreed, stating:

              So I do not believe that it is appropriate to allow the testimony of the
       friend of the respondent in the position of a complaining witness. I think
       that’s an inherent conflict of the respondent’s right to privacy, the
       respondent’s right to effective counsel, and would violate the whole reason
       that we appoint friends of respondents. I don’t think it’s appropriate to
       have them also be the complainant.

¶35    Even though the court determined that D.V.’s mother had a conflict of interest, the



                                             11
court did not appoint a substitute “friend” to protect D.V.’s interests. In addition, the

court later permitted D.V.’s mother, as the court-appointed “friend,” to make a record of

her consent to the waiver of D.V.’s statutory rights. D.V. now asserts that this was error

as the inherent conflict of interest in this situation prevented his mother from being an

effective “friend.”

¶36    Section 53-21-102(8), MCA, defines the “friend” of the respondent as:

       any person willing and able to assist a person suffering from a mental
       disorder and requiring commitment or a person alleged to be suffering from
       a mental disorder and requiring commitment in dealing with legal
       proceedings, including consultation with legal counsel and others. The
       friend of respondent may be the next of kin, the person's conservator or
       legal guardian, i f any, representatives of a charitable or religious
       organization, or any other person appointed by the court to perform the
       functions of a friend of respondent set out in this part. Only one person
       may at any one time be the friend of respondent within the meaning of this
       part. In appointing a friend of respondent, the court shall consider the
       preference of the respondent. The court may at any time, for good cause,
       change its designation of the friend of respondent. [Emphasis added.]

Thus, based on the language in this statute “any person” could be appointed by the court

to act as the “friend” of the respondent. The statute does not delineate any qualifications

for acting as the “friend,” nor does it set forth any sort of job description for the “friend.”

¶37    D.V. makes a valid point that commitment proceedings are the only type of

judicial proceeding where potentially anyone taken off the street may be appointed to act

for another individual and given the power to waive that individual’s rights and to have

that individual stripped of their freedom and dignity for a period of up to six months. We

agree with D.V. that in order to protect the privacy, liberty and due process rights of

respondents in commitment proceedings, at a minimum, the “friend” should be someone



                                              12
who is unbiased and objective and, certainly not, as in this case, the complaining witness.

¶38    Section 53-21-119, MCA, gives the “friend” of respondent enormous power over

the respondent:

              Waiver of rights. (1) A person may waive his rights, or if the person
       is not capable of making an intentional and knowing decision, these rights
       may be waived by his counsel and friend of respondent acting together if a
       record is made of the reasons for the waiver. The right to counsel may not
       be waived. The right to treatment provided for in this part may not be
       waived.
              (2) The right of the respondent to be physically present at a hearing
       may also be waived by his attorney and the friend of respondent with the
       concurrence of the professional person and the judge upon a finding
       supported by facts that:
              (a) the presence of the respondent at the hearing would be likely to
       seriously adversely affect his mental condition; and
              (b) an alternative location for the hearing in surroundings familiar to
       the respondent would not prevent such adverse effects on his mental
       condition. [Emphasis added.]

Thus, without any proper criteria delineated in our statutes for appointing an unbiased

individual to act as the “friend” of respondent, an individual acting as the “friend,” but

who did not have the respondent’s best interests in mind, could waive respondent’s

rights, have respondent committed to a mental institution, and thereby, deprive

respondent of his liberty and potentially gain control of respondent’s property. Such a

conflict of interest is contrary to the rights afforded every Montanan under Article II, § 17

of the Montana Constitution and the Fourteenth Amendment to the United States

Constitution.

¶39    We stated in K.G.F. that “one purpose of our laws governing the treatment of

‘seriously mentally ill’ persons is to ‘ensure that due process of law is accorded any

person coming under the provisions of [Title 53, Chapter 21].’ ” K.G.F., ¶ 26 (quoting


                                             13
§ 53-21-101(4), MCA). Hence, we constructed in K.G.F. a standard for ensuring the

fundamental fairness of civil commitment proceedings as they relate to the effectiveness

of counsel and we set forth the following authority for doing so:

       Matter of W.M. (1992), 252 Mont. 225, 229, 828 P.2d 378, 381 (stating that
       civil commitment for any purpose constitutes a significant deprivation of
       liberty that requires due process protection, and citing Addington v. Texas
       (1979), 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330-31);
       Matter of Shennum (1984), 210 Mont. 442, 450-51, 684 P.2d 1073, 1078
       (stating that procedural safeguards in commitment cases were “inserted by
       the legislature because of the calamitous effect of a commitment: a
       deprivation of a person's liberty for up to three months . . . and the
       inevitable damage to a person's reputation”). See also Foucha v. Louisiana
       (1992), 504 U.S. 71, 80, 112 S. Ct. 1780, 1785, 118 L. Ed. 2d 437 (stating
       that freedom from bodily restraint has always been at the core of the liberty
       protected by the due process clause from arbitrary governmental action);
       Mathews v. Eldridge (1976), 424 U.S. 319, 334, 96 S. Ct. 893, 902, 47
       L. Ed. 2d 18 (stating that due process is “flexible and calls for such
       procedural protections as the particular situation demands”).

K.G.F., ¶ 24.

¶40    We further stated in K.G.F., that courts must safeguard the due process rights of

the individual involved at every stage of the proceedings. K.G.F., ¶ 42 (citing Matter of

Mental Health of L.C.B., 253 Mont. 1, 7, 830 P.2d 1299, 1303 (1992)). That necessarily

includes the appointment of the “friend” of respondent at the time of the initial

appearance. And, a standard for ensuring the fundamental fairness of civil commitment

proceedings as they relate to the appointment of the “friend” of respondent should be

established. Consequently, we urge the Legislature to amend Title 53, Chapter 21, and

set forth some qualifications or criteria to appoint only unbiased and objective individuals

to act as “friend” of the respondent in commitment cases.

¶41    In this case, we hold that the District Court erred in appointing D.V.’s mother to


                                            14
act as his “friend” when she was also the complaining witness. Such appointment was a

conflict of interest and prejudiced D.V.’s right to a fair trial, thus we reverse on this issue.

¶42    The dissent implies that we object to the appointed “friend” being the respondent’s

“next of kin” or someone with “foreknowledge or previous involvement with a

respondent.”    On the contrary, what we fault in this case is that the “previous

involvement” entails the “friend” being the victim of the crime which brought about the

commitment proceedings. We are not saying that D.V.’s mother was the wrong person to

act as his “friend” because she is his mother, or as the dissent characterizes it, that she is

“taint[ed]” because of her kinship with D.V., we are saying that she was “taint[ed]”

because she was the victim of the crime that put D.V. into this situation. Whether or not

D.V.’s mother testified in court about the actual crime, the fact remains that she was his

victim. D.V.’s due process rights cannot be fully served by having the victim of his

crime determine whether or not he should be committed.

¶43    Moreover, while, as the dissent asserts, the record here may “scream[] out the

necessity of D.V.’s commitment,” the victim of D.V.’s crime should not be the one

turning those screams into action. D.V.’s mother was not the right person to represent

D.V.’s interests in this case. And, contrary to the dissent’s assertion that “any conflict of

interest between D.V. and his ‘friend’ clearly did not affect the outcome of the

commitment hearing,” in actuality the conflict prevented the commitment hearing from

proceeding—D.V.’s “friend” and his attorney made the decision to stop the hearing—

thus, it not only affected the outcome, it prevented any outcome from the hearing itself.

¶44    Reversed with instructions that the District Court vacate the order of commitment.


                                              15
                                                 /S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART



Justice Jim Rice dissenting.

¶45    Vacating D.V.’s commitment is not only unnecessary by reason of his mother’s

service as his “friend,” but such relief has not even been requested by D.V. Further, it is

not this Court’s role to add its own requirements to the statute governing appointment of

a “friend.” Therefore, I dissent.

¶46    D.V. argues that his mother should not have been appointed as his “friend” and as

a consequence urges that “her opinion should not be considered” by this Court. His only

other request is that “[f]uture commitment cases should make certain that the appointed

Friend, although apparently not needing any qualifications of any kind, certainly should

be an objective party.” He does not ask that his commitment be vacated.

¶47    And for good reason. D.V. has presented no evidence or argument that he was

prejudiced by his mother’s participation in the commitment proceeding, and indeed, no

prejudice to D.V. can be drawn from this record. To the contrary, the record here

screams out the necessity of D.V.’s commitment, and any conflict of interest between

D.V. and his “friend” clearly did not affect the outcome of the commitment hearing.

D.V.’s counsel decided to abort the trial without any testimony having been given by

D.V.’s mother, because the District Court had excluded it. Any objectively unbiased


                                            16
“friend” who may have been appointed could not have come to any other reasonable

conclusion but that D.V.’s commitment was abundantly necessary. As well described by

the Court’s opinion, D.V.’s lack of competence was undisputable, given his behavior

prior to and during trial.

¶48    “This Court has repeatedly stated that a district court’s decision will not be

reversed or remanded when the eventual result of the case would be the same without the

error.” In re S.C., 264 Mont. 24, 30, 869 P.2d 266, 269 (1994) (citation omitted). “It is

well established that no civil case shall be reversed by reason of error which would have

no significant impact upon the result; if there is no showing of substantial injustice, the

error is harmless.” In re C.B. & J.B., 2001 MT 42, ¶ 16, 304 Mont. 252, ¶ 16, 20 P.3d

117, ¶ 16 (citation and internal quotations omitted). There being no question that the

result here would have been the same even with a different “friend,” we should not vacate

D.V.’s commitment.

¶49    Secondly, the Court urges the Legislature to review Title 53, Chapter 21, in order

to designate qualifications and guidelines in selecting individuals to act as “friends” in

commitment cases.       I agree with the Court’s recommendation to the Legislature.

However, the Court then proceeds without legislative participation and inserts its own

requirement that a “friend” must have no conflicts of interest.        Merely because the

Legislature did not provide guidelines for appointing a “friend” does not mean it is this

Court’s duty or prerogative to insert them. “[O]ur role in interpreting a statute is simply

to ascertain what is in terms or in substance contained within that statute, neither omitting

what has been inserted nor inserting what has been omitted by the legislature.”


                                             17
MacMillan v. State Compensation Ins. Fund, 285 Mont. 202, 208, 947 P.2d 75, 78 (1997)

(emphasis added) (citing § 1-2-101, MCA).

¶50    The Court should be mindful of the function served by the “friend.” The “friend”

is not the respondent’s legal counsel, but, rather, is designed to serve a very different

purpose. A “friend” must be “willing and able to assist a person suffering from a mental

disorder,” may be “the next of kin” and is selected in consideration of the respondent’s

preferences. Section 53-21-102(8), MCA (2003). The “friend” is supposed to help the

respondent through the process, including consultations with legal counsel and other

professionals, and past familiarity with the respondent is encouraged. Section 53-21-

102(8), MCA (2003). However, there will be few “next of kin” who, though able to

assist a respondent, do not carry the “taint” of foreknowledge or previous involvement

with a respondent. It is unwise for the Court to impose restrictions without proper

consideration of the unique role to be fulfilled by the “friend” and the difficult position in

which a commitment proceeding may place the respondent’s next of kin who are called

upon to help the respondent, whose rights are no doubt the priority. There are rarely easy

solutions, and I would await the Legislature’s study and action on this matter.

¶51    I dissent.

                                                         /S/ JIM RICE

Justice John Warner and Justice Brian Morris join the dissenting opinion of Justice Rice.

                                                         /S/ JOHN WARNER
                                                         /S/ BRIAN MORRIS




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