                                                                                          March 6 2013


                                      DA 12-0231

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2013 MT 54



IN THE MATTER OF:

R.W.K.,

          Respondent and Appellant.



APPEAL FROM:       District Court of the Eighth Judicial District,
                   In and For the County of Cascade, Cause No. ADI 11-040
                   Honorable Thomas M. McKittrick, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant
                   Appellate Defender, Helena, Montana

            For Appellee:

                   Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                   Attorney General, Helena, Montana

                   John Parker, Cascade County Attorney, Marvin Anderson, Deputy County
                   Attorney, Great Falls, Montana



                                               Submitted on Briefs: January 3, 2013

                                                           Decided: March 5, 2013


Filed:

                   __________________________________________
                                     Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     R.W.K. appeals from an order of Montana’s Eighth Judicial District Court,

Cascade County, granting the State’s petition for the involuntary commitment of R.W.K.

to the Montana State Hospital (MSH) and authorizing MSH to administer appropriate

medication involuntarily. We affirm.

                                         ISSUES

¶2     R.W.K. raises the following two issues on appeal:

¶3     1. Did the District Court violate R.W.K.’s statutory and due process rights when it

failed to obtain a personal waiver of rights under § 53-21-119(1), MCA?

¶4     2. Is there a valid order authorizing involuntary medication, either in the original

commitment order or in the District Court’s amended order?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     R.W.K. is a 55-year-old male with a history of schizoaffective disorder. On

December 24, 2011, law enforcement officers transported R.W.K. to the emergency

department at Benefis Health System (Benefis) in Great Falls, Montana, after R.W.K.

caused a disturbance at a church. R.W.K. reportedly entered a church, laid down in a

pew, and chanted “I’m dead, I’m dead, I’m dead.” At the emergency room, R.W.K.

refused to cooperate and continued to claim that he was dead. R.W.K. was admitted to

the behavioral health unit for further treatment, but refused to walk or change into

hospital garments. Dr. Mary Ann Evans attempted to interview R.W.K. and reported that

he made little to no eye contact, would not speak, and refused to eat, take medication, or



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get dressed. Dr. Evans further reported that R.W.K. hit and shook the locked unit doors,

spoke incoherently, and jumped up and down.

¶6     Before his admission at Benefis, R.W.K. lived in a group home and was a patient

of the Center for Mental Health (CMH).           The medical records attached to the

commitment petition included information from CMH. CMH indicated that R.W.K. had

refused to take his medications for several days prior to the incident at the church. CMH

also noted that R.W.K.’s behavior had been disorganized and belligerent. R.W.K. was

isolating in his room and not talking to anyone “because of the ghost.” R.W.K. exhibited

symptoms and behaviors that had been recognized in the past to indicate worsening

psychosis.   R.W.K.’s history includes many instances of psychiatric hospitalization,

including time spent at MSH.

¶7     On December 28, 2011, the State filed a petition to involuntarily commit R.W.K.

The petition alleged that R.W.K. was unable to care for his basic needs and appeared to

pose a danger to himself and others. To determine if R.W.K. needed long-term treatment

in a secure facility, the petition requested a mental health evaluation. The District Court

set an initial appearance for December 30, 2011, and ordered the appointment of a public

defender to represent R.W.K. R.W.K. was to remain at Benefis until the hearing. The

District Court appointed a friend of respondent to serve pursuant to § 53-21-102(8),

MCA.

¶8     On December 30, 2011, the District Court held a hearing to determine if R.W.K.

was seriously mentally ill and in need of commitment. R.W.K. appeared at the hearing

accompanied by his public defender and the appointed friend. The District Court opened

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the hearing by reading R.W.K. a list of his substantive and procedural rights related to the

proceeding. Counsel for the State told the District Court that he had spoken to R.W.K.’s

counsel and believed that R.W.K. and his counsel agreed that R.W.K. would knowingly

and intentionally waive his procedural rights in the matter. The State recommended

commitment to MSH for a period of up to 90 days.

¶9     R.W.K.’s counsel told the District Court that she had met with R.W.K. and the

appointed friend and provided R.W.K. with a copy of the petition. R.W.K.’s counsel

stated that she believed R.W.K. understood his rights and the nature of the proceeding,

even though he suffers from a mental disorder. According to R.W.K.’s counsel, R.W.K.

communicated to her the day before the hearing and again the morning of the hearing that

he wished to waive his rights pursuant to § 53-21-119, MCA, and would stipulate to the

allegations contained in the petition. R.W.K.’s counsel stated that her client would agree

that the least restrictive placement was MSH so that they might have a longer concerted

effort at getting his medications regulated. R.W.K. did not object to or protest his

counsel’s representations.

¶10    After the parties made their statements, the District Court orally announced its

findings that: (1) the respondent intelligently waived his rights; (2) he suffers from a

serious mental illness; (3) he is a danger to himself; and (4) the least restrictive placement

is commitment to MSH for a period of up to 90 days. Subsequently, the District Court

entered a written order that included a full list of findings of fact and conclusions of law.

The order included a finding that R.W.K. “understands all procedural rights and that he

waives those rights knowingly.” The order also stated that R.W.K. “shall take such

                                              4
medication, as the attending physicians shall prescribe, both at the state hospital and,

also, during community outpatient treatment.”

¶11    On January 25, 2012, the State filed a motion to amend the commitment order to

allow the chief medical officer at MSH to administer appropriate medication

involuntarily. The State attached a letter from staff psychiatrist, Dr. Tatjana Caddell,

who stated that R.W.K. was incapable of understanding or making informed decisions

regarding his health and psychiatric treatment.      Specifically, Dr. Caddell noted that

R.W.K. was adamantly refusing to take all of his medications and he remained extremely

delusional. R.W.K. refused to eat or take in adequate amounts of fluids, which had

resulted in his weight dropping to only 93 pounds.

¶12    The District Court held a hearing on the motion to amend on January 26, 2012.

R.W.K. appeared via video from MSH. R.W.K.’s counsel stated an objection to the

motion to amend. Counsel pointed out that no discussion of involuntary medication

occurred at the previous hearing. Counsel argued that the District Court lacked authority

and jurisdiction to alter the terms of the commitment. The District Court proceeded with

the hearing, but stated that it would allow the parties to brief the issue if they wished to

do so. The State elicited testimony from Dr. Caddell concerning the need for involuntary

medication. The District Court questioned R.W.K. He continuously claimed that the

doctors were trying to poison him and he would not cooperate with them. The District

Court granted the State’s motion to allow the chief medical officer at MSH to administer

R.W.K.’s medications involuntarily, but stated that its ruling was subject to review after

receiving more briefing from the parties.

                                             5
¶13      After receiving the additional briefing from the parties, the District Court issued

an order on March 6, 2012, overruling R.W.K.’s jurisdictional objection to amending the

original commitment order.         First, the District Court determined that its initial

commitment order was sufficient to authorize the use of involuntary medication under

§ 53-21-127(6), MCA, because it contained language requiring that R.W.K. “shall take

such medication, as the attending physicians shall prescribe, both at the state hospital and,

also, during community outpatient treatment.” Next, the District Court concluded that

although amendment is not expressly authorized by statute, it could construe and grant

the State’s motion to amend as a nunc pro tunc motion under M. R. Civ. P. 60(a), or

alternatively, pursuant to M. R. Civ. P. 59(e). R.W.K appeals from the District Court’s

order.

                               STANDARDS OF REVIEW

¶14      We review a district court’s civil commitment order to determine whether the

court’s findings of fact are clearly erroneous and its conclusions of law are correct. In re

Mental Health of L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100; In re T.S.D.,

2005 MT 35, ¶ 13, 326 Mont. 82, 107 P.3d 481. A finding of fact is clearly erroneous if

it is not supported by substantial evidence, if the district court misapprehended the effect

of the evidence, or if we are left with a definite and firm conviction that a mistake has

been made after reviewing the entire record. L.K.-S., ¶ 14; T.S.D., ¶ 13. We must view

the evidence in the light most favorable to the prevailing party when determining whether

substantial credible evidence supports the district court’s findings. In re Mental Health of

A.S.B., 2008 MT 82, ¶ 17, 342 Mont. 169, 180 P.3d 625.

                                              6
¶15    Due process claims arising from involuntary civil commitments are subject to

plenary review. In re Matter of Mental Health of L.K., 2009 MT 366, ¶ 11, 353 Mont.

246, 219 P.3d 1263.

¶16    We review discretionary trial court rulings, including post-trial motions, for abuse

of discretion. In re Marriage of Weber, 2004 MT 206, ¶ 14, 322 Mont. 324, 95 P.3d 694;

In re L.S., 2009 MT 83, ¶ 18, 349 Mont. 518, 204 P.3d 707. A district court abuses its

discretion when it acts arbitrarily, without employment of conscientious judgment, or in

excess of the bounds of reason, resulting in substantial injustice. L.S., ¶ 18.

                                       DISCUSSION

¶17    Did the District Court violate R.W.K.’s statutory and due process rights when it
       failed to obtain a personal waiver of rights under § 53-21-119(1), MCA?

¶18    A respondent to a petition for involuntary commitment has statutory procedural

rights. See §§ 53-21-115 through -118, MCA. This Court requires “strict adherence” to

the statutory scheme governing involuntary commitment due to the “critical importance”

of the constitutional rights at stake. In re C.R., 2012 MT 258, ¶ 13; 367 Mont. 1, 289

P.3d 125; L.K.-S., ¶ 15. Section 53-21-119(1), MCA, sets forth the requirements to

effectuate a valid waiver of rights in a civil commitment action, and provides in pertinent

part as follows:

       A person may waive the person’s rights, or if the person is not capable of
       making an intentional and knowing decision, these rights may be waived by
       the person’s counsel and friend of respondent acting together if a record is
       made of the reasons for the waiver.

¶19    “Without factual findings necessary to each procedural requirement, supported by

evidence in the record, the commitment order cannot stand.” L.K.-S., ¶ 20. In L.K.-S.,

                                              7
the patient’s attorney represented to the court that the patient was not capable of making

an intentional and knowing decision on the matter of a jury trial. L.K.-S., ¶ 22. Patient’s

counsel concluded that waiver of a jury trial was in his client’s best interests. L.K.-S.,

¶ 22. Following a careful review of the record, this Court set aside the commitment order

after determining that the record was barren concerning the appointed friend’s

concurrence in the waiver of rights, which was required under § 53-21-119(1), MCA.

L.K.-S., ¶ 22. We similarly set aside a commitment order in L.K., a case in which there

was an insufficient record concerning whether L.K. was capable of making an intentional

and knowing waiver, where no record was made of a waiver by L.K.’s attorney and

friend acting together, and no record existed of the reasons supporting such a waiver.

L.K., ¶ 17.

¶20    R.W.K. does not claim that the commitment was contrary to his wishes, nor does

he claim that the waiver was not made intentionally and knowingly. Instead, R.W.K.

argues that the District Court failed to follow the requirements of § 53-21-119(1), MCA,

in obtaining the waiver of his procedural rights. Specifically, R.W.K. asserts that only

the person being committed may waive his own rights, unless the District Court

determines that such person is not capable of making an intentional and knowing

decision. Since the District Court did not personally question R.W.K. concerning the

waiver, he contends that the waiver of rights was invalid. The State maintains that the

District Court’s finding of waiver was supported by sufficient facts in the record.

¶21    Pursuant to § 53-21-119(1), MCA, R.W.K. could have validly waived his rights in

two ways: (1) if R.W.K. was capable of making an intentional and knowing decision,

                                             8
R.W.K. could have waived his own rights; or (2) if R.W.K. was not capable of making an

intentional and knowing decision, these rights may be waived by R.W.K.’s counsel and

appointed friend acting together if a record was made of the reasons for the waiver.

Section 53-21-119(1), MCA, does not specify the type or level of inquiry necessary to

constitute an intentional and knowing waiver. The District Court determined that R.W.K.

was capable of making an intentional and knowing decision regarding his procedural

rights, and he validly waived those rights. Given the facts before us, this finding is

supported by sufficient facts in the record and complies with the requirements of

§ 53-21-119(1), MCA.

¶22    The record reveals that R.W.K. was personally present at the District Court’s

December 30, 2011 hearing on the commitment petition. R.W.K. was accompanied by

his attorney and the appointed friend. The District Court opened the proceeding by

reading R.W.K. a list of his rights.      Next, R.W.K.’s counsel made the following

representations to the District Court:

               Your Honor, I did meet with [R.W.K.] yesterday and provided him
       with a copy of the petition in this matter, although [R.W.K.] does suffer
       from a mental disorder. It is my belief, Your Honor, that he understood his
       rights and the nature of this proceeding.
               Also in meeting with [R.W.K.], his friend, Ms. Hilbert, who is
       present here in court at counsel table, was there as well. And we had a
       discussion with him about the allegations and what the doctor was
       recommending here. And [R.W.K.] indicated to me at that time, and again
       this morning, that he wishes to waive his rights in this matter pursuant to
       section 353-21-119 MCA [sic] and that he will stipulate to the allegations
       contained in the . . . petition, as well as Dr. Kasner’s report. . . .

¶23    Following these statements, the District Court made several findings concerning

R.W.K.’s waiver of his rights. First, the District Court orally stated that: “Based on those

                                             9
representations and the files and records, the Court finds that the respondent has

intelligently waived his rights.” The District Court’s subsequent written order noted that

“Counsel and Respondent determined Respondent is capable of making an intentional

and knowing decision in this matter,” and “they agreed to waive Respondent’s rights to a

formal proceeding in this matter.”           The District Court found that “Respondent

understands all procedural rights and that he waives those rights knowingly.”

Furthermore, the District Court concluded that “Respondent has received all the benefit

of all statutory and constitutional rights guaranteed by MCA Title 53, Chapter 21 (2011)

and the Montana and United States Constitutions.”

¶24    While it is true that a defendant in a criminal proceeding must make a personal

statement of waiver on the record to validly waive certain rights,1 we find no error in the

District Court’s reliance on R.W.K.’s counsel’s representations to support the civil

commitment order. These statements concerning waiver were made in open court and in

the presence of R.W.K. and the appointed friend. Notably, R.W.K. does not contend here

that his waiver was anything but intentional and knowing. Under these circumstances,

R.W.K. effectively waived his rights by allowing his counsel to inform the judge of his

desire to do so.




1
  See e.g. State v. McCarthy, 2004 MT 312, ¶ 32, 324 Mont. 1, 101 P.3d 288 (“If a defendant
chooses to waive his right to be present at a critical stage of the trial, the court must obtain an
on-the-record personal waiver by the defendant acknowledging the defendant voluntarily,
intelligently, and knowingly waives that right.”).

                                                10
¶25    Accordingly, we hold that the District Court complied with the requirements of

§ 53-21-119(1), MCA, in obtaining R.W.K.’s waiver of rights, and did not violate his due

process rights.

¶26    Is there a valid order authorizing involuntary medication, either in the original
       commitment order or in the District Court’s amended order?

¶27    Once a trial court determines that a person suffers from a mental disorder

requiring commitment, § 53-21-127(6), MCA, provides that:

       The court may authorize the chief medical officer of a facility or a
       physician designated by the court to administer appropriate medication
       involuntarily if the court finds that involuntary medication is necessary to
       protect the respondent or the public or to facilitate effective treatment.

In ordering commitment, if the order includes involuntary medication, the trial court shall

set forth “the reason involuntary medication was chosen from among other alternatives.”

Section 53-21-127(8)(h), MCA.

¶28    R.W.K. challenges whether the District Court’s order of commitment contained

sufficient language to allow for involuntary medication. The District Court included the

following language in its original order of commitment: “The Respondent shall take such

medication, as the attending physicians shall prescribe, both at the state hospital and,

also, during community outpatient treatment.”

¶29    This Court has previously held that such language is sufficient to authorize

involuntary medication. See In re Mental Health of S.C., 2000 MT 370, ¶ 15, 303 Mont.

444, 15 P.3d 861. In S.C., the district court ordered the commitment of S.C., and

included in the order that S.C. was to “agree to take medication as prescribed.” S.C., ¶ 2.

S.C. challenged whether the district court satisfied the statutory prerequisites in ordering

                                            11
involuntary medication. S.C., ¶ 11. In our review of the district court’s findings of facts,

we applied the “doctrine of implied findings,” which provides that where the “findings

are general in terms, any findings not specifically made, but necessary to the

determination, are deemed to have been implied, if supported by the evidence.” S.C.,

¶ 14. Although the district court did not specifically state in one distinct finding why

involuntary medication was chosen, the court’s detailed findings of fact made clear why

the court concluded that involuntary medication was the least restrictive and most

appropriate alternative. S.C., ¶ 14. This Court held that in ordering that S.C. “agree to

take medication as prescribed,” the district court complied with the statutory mandates

that required it to find that involuntary medication was necessary to protect the person,

the public, or to facilitate treatment, and it sufficiently set forth the reason involuntary

medication was chosen. S.C., ¶ 15.

¶30    Here, R.W.K. stipulated to the facts as set forth in the petition for commitment and

attached medical reports. The District Court specifically found that R.W.K. was “unable

to care for his basic daily needs and he appears to be a danger to himself and to others

due to mental disorder.” R.W.K. had a history of noncompliance with his medication,

and these periods of noncompliance often led to heightened psychosis.             R.W.K.’s

behavior was irrational and belligerent.     The District Court found that R.W.K. had

“stopped taking his medications and his mental health has deteriorated.” Furthermore,

the District Court reasoned that if R.W.K. was left untreated, his mental health would

continue to deteriorate and he would be unable to care for himself.             During his

hospitalization at Benefis, R.W.K. refused to take his medications and refused to eat or

                                            12
drink. Given the seriousness of R.W.K.’s condition, the District Court determined that

the least restrictive placement that would permit effective treatment was MSH. Based on

all of these findings, the District Court ordered that R.W.K. “shall take such medication,

as the attending physicians shall prescribe.”

¶31    The language employed by the District Court, “Respondent shall take such

medication,” is even more authoritative than the language used by the district court in

S.C. This Court commonly interprets the word “shall” to indicate a mandatory and

compulsory directive. See e.g. Montco v. Simonich, 285 Mont. 280, 287, 947 P.2d 1047,

1051 (1997) (“Both ‘shall’ and ‘must’ are mandatory, rather than permissive.”); State v.

Bartlett, 271 Mont. 429, 432-33, 898 P.2d 98, 100 (1995) (“The word ‘shall’ is

compulsory.”). The District Court’s use of “shall” is strong evidence of its intent to

require R.W.K. to take the medication his doctors prescribed.

¶32    Pursuant to our holding in S.C., and based upon the evidence in the record, we

hold that the District Court complied with the statutory requirements in ordering R.W.K.

to take medications as prescribed by his doctors.       This directive was sufficient to

authorize involuntary medication because the District Court’s other findings made clear

the necessity of taking such action to protect R.W.K., the public, and to facilitate his

treatment. Moreover, the District Court’s findings demonstrate that other alternatives to

involuntary medication were considered. For the benefit of all involved, however, and

consistent with the provisions of § 53-21-127(6) and (8)(h), MCA, we urge the district

courts to plainly and clearly state in orders of commitment whether the circumstances

justify authorizing the chief medical officer or designated physician to administer

                                                13
medication involuntarily, and if so, the reason involuntary medication was chosen from

among other alternatives.

¶33   Next, R.W.K. contends that the District Court misapplied the Montana Rules of

Civil Procedure when it amended its original commitment order. The State filed a

motion to amend the commitment order to expressly authorize the chief medical officer at

MSH to administer appropriate medication involuntarily. In addressing the motion to

amend, the District Court determined that its initial commitment order was sufficient to

authorize the use of involuntary medication under § 53-21-127(6), MCA, because it

contained language requiring that R.W.K. “shall take such medication, as the attending

physicians shall prescribe, both at the state hospital and, also, during community

outpatient treatment.” As we previously discussed, we agree that the District Court’s

original order was sufficient to authorize involuntary medication.      Therefore, it is

unnecessary for this Court to address R.W.K.’s remaining allegations pertaining to the

amendment of the original commitment order.

                                   CONCLUSION

¶34   For the foregoing reasons, we affirm the District Court’s determination that

R.W.K. validly waived his procedural rights pursuant to § 53-21-119(1), MCA, and that

the District Court’s order of commitment authorized the administration of involuntary

medication.


                                                      /S/ PATRICIA COTTER

We Concur:


                                          14
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BETH BAKER




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