                            No.    91-275

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1992



IN THE MATTER OF THE MENTAL HEALTH OF
L.C.B.,
          Appellant.



APPEAL FROM:   District court of the Eleventh Judicial District,
               In and for the County of Flathead,
               The Honorable Michael H . Keedy, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Robert B. Allison, Attorney at Law,
               Kalispell, Montana
          For Respondent:
               Hon. Marc Racicot, Attorney General, John
               Paulson, Assistant Attorney General,
               Helena, Montana: Ted 0 Lympus, Flathead
                                     .
               County Attorney, Dennis J. Hester, Deputy
               County Attorney, Kalispell, Montana


                            Submitted on Briefs:      October 31, 1991
                                            Decided: April 3 , 1992




                                  Clkrk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
      This is an appeal from the Eleventh Judicial District Court,
Flathead County. The Flathead County Attorney's office filed with
the District Court a petition for the involuntary commitment of
L.B., pursuant to 5 5 53-21-114 through -126, MCA, alleging that
L.B. was seriously mentally ill. The District Court held a hearing
on the matter and concluded that L B was seriously mentally ill
                                  ..
and in need of treatment.            The District Court ordered L.B.
committed to the Montana State Hospital in Warm Springs for
treatment.         It is from this order that L.B. appeals. We affirm.
      The following issues are presented for review by this Court:
      1.     Was the District Court's finding that L.B. is seriously
mentally ill clearly erroneous?
      2.     Did the District Court err in considering testimony
concerning L.B.Is         behavior while L.B.   was detained following
dismissal of a prior petition for involuntary commitment?
      3.     Did the District Court err in denying L.B.    's   motion to
dismiss the second petition for involuntary commitment on the basis
of res judicata?

      The appellant is a 30-year-old male who was arrested on
April 26, 1991, in connection with an automobile accident.          While
in custody, the appellant appeared to be disoriented and confused.
This behavior prompted law enforcement officials to request that
appellant be examined by an individual in the mental health field.
A mental health assessment was conducted by Dr. Barbara Louise

                                      2
Stone, a clinical therapist at the Western Montana Regional
Community Mental Health Center in Kalispell.         Dr. Stone is a
certified "professional person" pursuant to   §   53-21-102(12), MCA.

    After visiting with the appellant in the Flathead County Jail,
Dr. Stone concluded that appellant was seriously mentally ill.
Specifically, Dr. Stone diagnosed the appellant as suffering from
chronic paranoid schizophrenia.      In Dr. Stone's opinion, the
appellant's condition significantly impaired his ability to meet
his own basic needs and protect his life and health.        When the
appellant refused to accept the services of the mental health
center, Dr. Stone submitted an emergency report requesting his
commitment to the Montana State Hospital.          Pursuant to this
emergency report, on May 1, 1991, the Flathead County Attorney's
Office filed with the District Court a petition for involuntary
commitment.
     The District Court found probable cause, appointed counsel for
appellant, and scheduled a hearing on the matter, which was held on
May 2, 1991.   At the hearing, the State argued that appellant was
seriously mentally ill and suffered from a mental disorder which
had deprived the appellant of the ability to protect his own life
or health in accordance with 5 53-21-102(15),        MCA.   The only
evidence received by the court was the testimony of Dr. Stone. Dr.
Stone described the bizarre behavior of the appellant and gave her
diagnosis of his illness.   Dr. Stone also testified that in her
opinion appellant's condition made him unable to protect his own

                                 3
life or health.    At the conclusion of Dr. Stone's testimony,
counsel for the appellant made a motion to dismiss the petition for
involuntary commitment. Appellant's counsel argued that there had
not "been a sufficient showing of either endangerment or inability
to protect his own life and provide for his own needs."          The
District Court agreed and granted the motion to dismiss the
petition.   The District Court acknowledged that the appellant's
behavior was bizarre and that appellant appeared to be a very
troubled young man.         However, the court felt the testimony
concerning appellant's inability to protect his own life or health
was simply too speculative.
     Upon granting appellant's motion to dismiss, the District
Court ordered the appellant released.         After the hearing had
terminated, a deputy sheriff from the Flathead County Detention
Center approached the District Court Judge and appellant's counsel
while they were visiting.     The deputy sheriff requested permission
to detain the appellant for approximately 30 minutes until another
deputy sheriff returned from lunch.      The second deputy upon whom
they were waiting was the mental health liaison at the jail and
also knew the appellant's sister.      It was hoped that arrangements
could be made for his sister to come and get the appellant, as
opposed to just sending him out into the street.
     Upon returning to work        from lunch, the deputy    sheriff
attempted to locate a place for the appellant, or at least someone
to come and get him.   An   individual from the Crisis Response Team

                                   4
came to see the appellant.           This individual determined that
appellant was too ill to stay in the Crisis Response Team's safe
house for mentally ill persons. Appellant's sister was contacted,
but she refused to come get the appellant, indicating that she was
afraid of him. Dan George, Director of the Lamplighter House which
is a program of the Western Montana Regional Community Mental
Health Center, then came to the jail to see the appellant.         George
is a certified "professional person" under Montana law.             After
interviewing the appellant, George determined that appellant should
be committed involuntarily to the State Hospital for immediate
treatment.      Upon George's recommendation, the Flathead County
Attorney's     Office   filed   a   second    petition   for   involuntary
commitment that same afternoon.       The District Court Judge ordered
an immediate hearing on the matter.          Prior to the second hearing,
counsel for the appellant made a motion to dismiss the State's
second petition.     The District Court denied that motion.       George,
and the deputy who had been trying to locate a place for the
appellant, both testified at the second hearing.                   At the
conclusion of the hearing, appellant renewedthe motion to dismiss.
The District Court determined that the appellant was seriously
mentally ill, that such mental illness had deprived the appellant
of the ability to protect his life or health, and that commitment
to the State Hospital at Warm Springs was the least restrictive
environment available for treatment. The District Court's order of
May   2,   1991, provided that appellant would be transferred to the


                                     5
State Hospital at Warm Springs for a period of treatment not to
exceed 90 days, unless extended as provided by law.   The District
Court reconsidered this decision and reaffirmed it in an order
dated May 9, 1991.
                                  I
    Was the District Court I s finding that L.B.      is seriously
mentally ill clearly erroneous?
     Appellant alleges that the testimony given at the second
hearing was insufficient to support the District Court's decision.
Section 53-21-127, MCA, provides that prior to ordering the
involuntarily commitment of a person to the State Hospital at Warm
Springs, the     District Court must   first determine that the
individual is seriously mentally ill. Section 53-21-102(15), MCA,
defines the term seriously mentally ill and provides in part that:
          ''Seriously mentally ill" means suffering from a
     mental disorder which has resulted in self-inflicted
     injury or injury to others or the imminent threat thereof
     or which has deDrived the Derson afflicted of the abilitv
     to wrotect his life or health. [Emphasis added.]
Section 53-21-127, MCA, also provides that the court shall choose
the least restrictive environment available that will protect the
individual, the public, and permit effective treatment.
     The standard of proof for the District Court in involuntary
commitment proceedings is set out at 5 53-21-126(2), MCA, which
reads in part:
          The standard of proof in any hearing held pursuant
     to this section is proof beyond a reasonable doubt with
     respect to any physical facts or evidence and clear and

                                  6
       convincing evidence as to all other matters, except that
       mental disorders shall be evidenced to a reasonable
       medical certainty.
Concerning this statute, we have stated that:
       [Plroof of mental disorders to a reasonable degree of
       medical certainty is sufficient if, considered with all
       the other evidence in the case, the trier of fact is led
       to the conclusion that the mental disorder exists by
       clear and convincing proof.
In the Matter of G.P. (1990), 246 Mont. 195, 197, 806 P.2d 3, 5.
       On appeal, this Court will not disturb the District Court's
findings of fact in a nonjury trial unless they are clearly
erroneous.     In the Matter of the Mental Health of E.P. (1990), 241
Mont. 316, 787 P.2d 322; Rule 52(a), M.R.Civ.P.         This Court will
also give due regard to the opportunity of the District Court to
judge the credibility of the witnesses.            In the Matter of the
Mental Health of R.J.W. (1987), 226 Mont. 419, 736 P.2d 110. Upon
reviewing conclusions of law reached by the District Court, this
Court will merely determine if the decision below was correct or
not.    In The Matter of J.L.S. and A.D.S. (1988), 234 Mont. 201, 761
P.2d 838.      In the present case, the District Court limited the
testimony at the second hearing to only those events occurring
subsequent to the first hearing.         This Court will only review the
evidence presented at the second hearing.
       As previously mentioned, the District Court must find by clear
and convincing evidence that an individual is seriously mentally
ill    prior   to   ordering   the   involuntary    commitment   of   that
individual.      We will not disturb such a finding unless it is

                                     7
clearly erroneous.    This Court has recently adopted a three-part
test for determining if a finding is clearly erroneous. Interstate
Production Credit Ass’n v. DeSaye (Mont. 1991), 820 P.2d 1285, 48
St.Rep. 986.   In DeSave, we explained this three-part test stating
that:
     First, the Court will review the record to see if the
     findings are supported by substantial evidence. Second,
     if the findings are supported by substantial evidence, we
     will determine if the trial court has misapprehended the
     effect of evidence.     [Citations omitted.]   Third, if
     substantial evidence exists and the effect of the
     evidence has not been misapprehended, the Court may still
     find that “[a] finding is ‘clearly erroneous’ when,
     although there is evidence to support it, a review of the
     record leaves the court with the definite and firm
     conviction that a mistake has been committed.” [Citation
     omitted. 3
DeSave, 820 P.2d at 1287.
        In the present case, the District Court determined that
appellant was seriously mentally ill. He was unable to protect his
life or health and the least restrictive environment in which to
receive treatment was at the State Hospital at Warm Springs.     We
agree. There was substantial evidence presented at the hearing to
support the District Court’s finding. The uncontradicted testimony
indicated that the appellant suffered from chronic paranoid
schizophrenia, which    without treatment and    medication   would
continue to impair his ability to meet his most basic needs.     The
appellant demonstrated an inability to take care of or assess his
basic health needs.    Although food was provided for him at the
detention center, he was not eating, even though he complained of


                                 8
hunger. The appellant was not oriented to person, place, and time.
Appellant appeared to be suffering from auditory hallucinations
which additionally impaired his ability to process information and
respond to even the simplest of tasks.
     The    substantial evidence supports the         District Court's
decision in this instance. The District Court did not misapprehend
the effect of the evidence, nor does a review of the record leave
this Court with a definite and firm conviction that a mistake ha5
been committed.    The finding by the District Court that L.B. i5
seriously mentally ill was not clearly erroneous.
                                     I1
     Did the District Court err in considering testimony concerning
L.B.'s behavior while L.B. was detained following dismissal of the
first petition for involuntary commitment?
     The testimony given at the second hearing, which resulted in
L.B.'s involuntary commitment, was based on information obtained on
the afternoon of May 2, 1991, after the District Court had ordered
the appellant released. On appeal, it is argued by appellant that
all evidence obtained after the District Court's order to release
the appellant should be excluded.          Appellant requests that this
Court apply, for the first time, the criminal law exclusionary rule
to the present situation.
     Both    parties   in   this    case   recognize that    involuntary
commitment hearing proceedings are civil in nature.         In the Matter
of the Mental Health of     G.S.   (1985), 215 Mont. 384, 698 P.2d 406;

                                     9
5 53-21-115(7), MCA.    Despite the fact that this was not a criminal
proceeding, appellant's argument that the exclusionary rule should
apply is not altogether unpersuasive.        Appellant correctly points
out that such proceedings may result in a massive curtailment of
liberty    for   the   person   committed.     Therefore,      involuntary
commitment   proceedings    must   carefully    follow   the    mandatory
statutory guidelines and the courts must safeguard the due process
rights of the individual involved at every stage of the proceeding.
Matter of E.P., 787 P.2d at 322.
     This Court has previously         explained    the objectives of
commitment hearings as follows:
          The core purpose of our statutory scheme in
     addressing those unfortunate persons who suffer a mental
     disorder is to secure for them such care and treatment,
     skillfully and humanely administered, as may be in their
     best interest. This purpose is codified in 5 53-21-
     101(1), MCA.

In the Matter of J.B. (1985), 217 Mont. 504, 510, 705 P.2d 598,
602. Suppressing relevant evidence in commitment proceedings would

defeat the purpose of the proceeding, which is to secure the
appropriate treatment for those who need it and are unable, due to
their mental condition, to obtain this treatment for themselves.
We decline to apply the criminal law exclusionary rule to this
involuntary commitment hearing. The District Court did not err in
considering testimony concerning L.B.'s        behavior while L.B. was
detained   following the dismissal of the first petition for
involuntary commitment.
                                   I11

       Did the District Court err in denying L.B. ' s motion to dismiss
the second petition for involuntary commitment on the basis of res

judicata?

       Prior to the start of the second hearing the appellant made a
motion to dismiss the second petition on the grounds that the
doctrine of resjudicata barred the District Court from reconsidering

this matter.    This Court has stated that four criteria must be met
before an issue is barred by resjudicata: (1) the parties or their

privies must be the same: (2) the subject matter of the action must
be the same: (3) the issues must be the same and relate to the same
subject matter; and    (4)   the capacities of the persons must be the
same in reference to the subject matter and to the issues between
them. Phelan v. Lee Blaine Enterprises (1986), 220 Mont. 296, 716
P.2d 601.    In this case, the District Court expressly prohibited
the introduction of evidence relating to the appellant and the time
period prior to the first hearing.         Only testimony of evidence
obtained subsequent to the first hearing was allowed.       Therefore,
the issues were not the same in the second hearing.      Additionally,
the doctrine of resjudicata only applies to orders that are final or

by their nature are intended to be final. Peterson v. Montana Bank
of Bozeman, N.A. (1984), 212 Mont. 37, 687 P.2d 673. The doctrine
of resjudicata is intended to protect litigants from repeated suits

over the same issues and subject matter and to provide a final
resolution of the controversy.    Brault v. Smith (1984), 209 Mont.
21, 679 P.2d 236. However, a commitment hearing is different than
most other civil suits.   A   finding at one time that an individual
does not suffer from a serious mental illness is not intended to be
a final and irrevocable decision on the individual's mental health.
The statutes contemplate that the question of whether an individual
is seriously mentally ill may be brought at any time as long as the
necessary statutory criteria are met.     The District Court did not
err in denying appellant's motion to dismiss the second petition
for involuntary commitment on the basis of res judicata.

     We affirm.
                                  /




                                  12
                                          April 3, 1992

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Robert B. Allison
Attorney at Law
130 5th St. E.
Kalispell, MT 59901

Dennis J. Hester
Flathead County Attorney’s Office
800 South Main
Kalispell, MT 59901

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT



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