                                 No.   93-484

               IN THE SUPREME COURT O F THE STATE    OF   MONTANA




IN THE MATTER OF THE
MENTAL HEALTH OF D. B.




A P P E A L FROM:   District Court of the Seventh Judicial District,
                    I n and for the County of ~ichland,
                    The Honorable Kenneth R. Wilson, Judge presiding.


COUNSEL O F RECORD:
              For Appellant:
                    Lonnie J. Olson, Mental Disabilities Board         of
                    Visitors, Warm Springs, Montana
               For Respondent:
                    Mike Weber, Richland County Attorney, Sidney,
                    Montana; Hon. Joseph P. Mazurek, Attorney General,
                    John Paulson, Assistant Attorney General, Helena,
                    Montana


                                 Submitted on ~riefs: January 27, 1994
                                                Decided: February 11, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

     D.B. appeals a portion of an Order of Commitment of the
Seventh Judicial District Court, Richland County, authorizing the
involuntary administration of medications. We reverse and remand.
     The issue on appeal is as follows: did the District Court err
by including, in its Order of Commitment, a directive allowing D.B.
to be forcibly medicated?
     On August 13, 1993, a Petition for Involuntary Commitment was
filed in Richland County alleging that D.B. was seriously mentally
ill and requesting his commitment to a mental health facility for
a period of not more than three months.    That same day, District
Judge Richard Phillips found probable cause for D.B.'s   detention
pending a hearing.    D.B. requested that he be detained at the
county jail rather than in the Glendive Medical Center, and this
request was granted by Judge Phillips. The court appointed Douglas
Walter, a certified professional person, to examine D.B., which Dr.
Walter did on August 14, 1993.
     On August 18, 1993, a hearing was held before District Judge
Kenneth Wilson, and D.B. was represented by counsel. Bev Deitz, an
intensive case manager forthe Eastern Montana Mental Health Center
(Health Center), testified, as did Kay Johnson, the day treatment
coordinator at the Health Center.    Both women testified that they
had encountered D.B. on a street in Sidney on August 13, 1993, and
that D.B. told them that the Richland National Bank had kept a
hundred million dollars from him and he was going to go to the bank
and kill the people there.   In addition, D.B. threatened to go to
                                 2
the Cattle-ac, a local bar, and kill everyone there.      D.B. also
threatened to kill Ms. Dietz and Ms. Johnson. Both women testified
that D.B.   spoke rapidly and continuously, appeared extremely
agitated, and was hallucinating about aliens from outer space.
     Dr. Walter filed a Report to the Court on the day of the
hearing and also testified.   Dr. Walter stated that he was unable
to obtain much   background   information on D.B.,     as D.B.   was
suspicious of Dr. Walter's intent and had difficulty organizing his
thoughts.   Dr. Walter further testified that D.B. appeared to be
confused and disoriented, and believed that the telephone in his
jail cell was *lbuggedlt communists.
                      by                 D.B. also told Dr. Walter
that he was waiting for a check to be delivered to him for a
hundred million dollars.    He said the source of that money was a
hundred movie stars and that some of it was partial payment for a
film he made with Donna Summer entitled "Donna and Don."         Dr.
Walter testified that D.B. had a "loosening of association" and
diagnosed D.B. with chronic paranoid schizophrenia. He testified
that D.B. posed an imminent threat of injury to himself and to
others, and stated that D.B. was seriously mentally ill.         Dr.
Walter recommended that D.B. receive "inpatient evaluation for
medication, treatment" and that this "evaluation and treatmentt1
occur at the Montana State Hospital in Warm Springs.
     David Schettine, a detective sergeant with the Sidney Police
Department, testified that he and three other officers served the
commitment papers on D.B.     When Mr. Schettine served D.B., he
ripped up the papers and stated that the president had already
pardoned him.   D.B. also spoke of aliens. Mr. Schettine testified
that D.B. accompanied the officers, but refused to get out of the
car and struck Mr. Schettine when he attempted to remove D.B. from
the car.
     During the hearing, D.B. threatened the District Judge and had
to be restrained from leaving the courtroom a number of times.   He
continually disrupted the proceedings by cursing and threatening
the participants.   At one point, D.B. stated that "this ain't the
only planet I m dealing witht1
             '                and stated that the telephone in his
jail cell was a "communist phone."
     After the hearing, the District Court entered Findings of Fact
and Conclusions of Law and determined that D.B. was seriously
mentally ill. The court signed an Order of Commitment, and in this
order stated that "if the patient refuses oral medication, the
attending physician at Montana State Hospital shall have the
authority to administer medication by injection if necessary.11
D.B. appeals that portion of the order dealing with the forced
medication.
     In the Petition for Involuntary Commitment, the Richland
County Attorney did not allege that D.B. had refused medication or
that the possibility existed that D.B. would refuse medication, and
did not request that D.B. be forcibly medicated.   At the hearing,
the medication issue was only peripherally addressed, at best.
D.B. had no notice, prior to the entry of the Order of Commitment,
that forcible medication was an      issue.   The District Court
gratuitously included the order that D.B. was to be forcibly
medicated, if necessary. Therefore, without reaching or addressing
the constitutional issues raised by D.B. in his briefs on appeal,
we hold that the District Court erred in including the language
allowing the state hospital to forcibly medicate D.B., and order
that portion of the Order of Commitment stricken.
     Reversed and remanded with instructions.
     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




We Concur:
THE FOLLOWING INDIVIDUALS WILL BE ADMITTED TO THE STATE BAR OF
MONTANA, TUESDAY, OCTOBER 18, 1994, AT 9:00 A.M.:
Deborah J. Schaaf
Helena, Montana
Michael D. Isakson
Kalispell, Montana
Bruce R. Elworthy
Tahoe City, California
Anne B. Marshall
Tahoe City, California
                                    February 11, 1994

                             CERTIFICATE OF SERVICE

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


Lonnie J. Olson
Mental Disabilities, Board of Visitors
P. 0. Box 177
Warm Springs, MT 59756

Mike Weber
Richland County Attorney
Courthouse, 201 W. Main
Sidney, MT 59270


Hon. Joseph P. Mazurek, Attorney General
John Paulson, Assistant
Justice Bldg.
Helena, MT 59620


ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA,
