                                                                                        08/30/2017


                                     DA 16-0156
                                                                                    Case Number: DA 16-0156

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2017 MT 214



IN THE MATTER OF:

J.S.,

         Respondent and Appellant.



APPEAL FROM:      District Court of the First Judicial District,
                  In and For the County of Lewis And Clark, Cause No. CDI 16-21
                  Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Chad Wright, Chief Appellate Defender, Kristen L. Peterson, James
                  Reavis (argued), Assistant Appellate Defenders, Helena, Montana

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Mardell Ployhar (argued),
                  Assistant Attorney General, Helena, Montana

                  Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana

            For Amicus Curiae:

                  Beth Brenneman (argued), Roberta R. Zenker, Disability Rights Montana,
                  Helena, Montana

                  Alex Rate, Legal Director ACLU of Montana, Missoula, Montana


                                              Argued and Submitted: June 28, 2017
                                                           Decided: August 30, 2017


Filed:

                  __________________________________________
                                    Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    J.S. challenges her involuntary commitment to the Montana State Hospital (MSH)

ordered by the First Judicial District Court, Lewis and Clark County. The only issue J.S.

raises on appeal is whether she was denied the effective assistance of counsel. We

address J.S.’s claim of ineffective assistance of counsel and, in doing so, reconsider by

what standard such a claim should be measured. We affirm J.S.’s commitment.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2    J.S. suffers from bipolar disorder. On January 30, 2016, an ambulance transported

J.S. to St. Peter’s Hospital after she was found in the middle of Lincoln Road in Helena.

J.S. had been “clipped” by a car and hit by the car’s mirror. She sustained several cuts

and abrasions. Because she was extremely psychotic and delusional, the emergency

room physician contacted Western Montana Mental Health Center (WMMHC) to do an

evaluation.   Kim Waples (Waples), a mental health professional with WMMHC,

conducted an evaluation and concluded that J.S. was in need of emergency detention.

Waples contacted the County Attorney who filed a petition for J.S.’s involuntary

commitment.    Pending trial on the State’s petition, J.S. was detained at MSH and

reassessed. Based on the reassessment, the State dismissed its petition and J.S. was

discharged to the community.

¶3    Several days later, on February 9, 2016, J.S. called 911 requesting help to get to

the Center for Mental Health. An officer transported J.S. there, but the Center for Mental

Health informed J.S. that she could not be seen for two days. The officer was concerned

about J.S. and asked her to go to the hospital, which J.S. agreed to do. While at the


                                            2
hospital, emergency room staff contacted Kristina Gillespie (Gillespie), a mental health

professional, because J.S. was unable to communicate due to her extreme level of

psychosis and delusional thinking. She was paranoid, irritable, and unable to consent to

voluntary treatment. Additionally, J.S. had a serious wound on her leg which was not

being treated. Based on Gillespie’s evaluation, J.S. was detained on an emergency basis

at the Journey Home, a local mental health center. The State filed a petition to have J.S.

involuntarily committed. Trial was held on February 11, 2016.

¶4    Justin Kennedy (Kennedy), a nurse at the Journey Home who has experience with

skin and wound issues, treated J.S. Kennedy testified J.S. had two “dime-sized” open

areas which were 70 percent necrotic, or dead, tissue. The wound bed was at a high risk

of infection, which, if not treated correctly, could lead to loss of J.S’s leg or J.S.

becoming septic. Treatment of the wound required J.S. to change the dressings twice a

day and take two antibiotics, one of which J.S. had to take four times a day and the other

two times a day. J.S. would need to maintain supplies, which might be difficult given

Kennedy’s understanding that J.S. was homeless. Kennedy testified that he explained to

J.S. the regimen for changing her dressings and the frequency and need to take her

antibiotics; however, when he stepped away for five minutes and returned to reassess

whether she understood, J.S. was unable to repeat the regimen to Kennedy. She could

not restate the names of the antibiotics or how often she was supposed to take them. She

could not state how often she was to change her dressings. Kennedy testified that J.S.’s

mental illness was definitely playing a part in her inability to adequately care for her

wound.


                                            3
¶5        Waples conducted J.S.’s evaluation in preparation for trial. In Waples’s report to

the court she indicated that J.S. was highly agitated, aggressive, and “postur[ing] towards

another resident in the [emergency detention] unit.” J.S. denied any history of mental

illness and when asked if she had ever been treated for a mental illness, responded

emphatically that she had not.1 Waples noted an extensive history of mental illness,

suicide attempts, and prior commitments. During trial, Waples testified that J.S. was

suffering from unspecified bipolar and related disorder, which could not be stabilized

without psychotropic medications. She presented as manic. She was delusional, agitated,

and irritable. Her thoughts were disorganized, punctuated by moments of clarity, but

then becoming disorganized again. Waples explained that while some people present as

delusional all the time, some will have moments of clarity. J.S. was grandiose and had

tangential speech.         During Waples’s evaluation of J.S., J.S. would start to answer

questions, but then her thoughts would “derail[]” and her thinking would become

disorganized. Waples indicated that J.S. did not believe she had a mental disorder and

that such a belief would significantly affect J.S’s willingness and ability to seek treatment

on her own. According to Waples, a person who is disorganized in her thinking is unable

to consistently care for herself. Waples testified it is “hit and miss” and that sometimes

J.S. could get appropriate help, but if J.S.’s thoughts were delusional and disorganized,

“she might not really be able to connect where to go and what type of help to ask for.”

Finally, Waples asked J.S. if she knew what kind of care her leg required; J.S. just looked

at Waples and shrugged.

1
    More specifically, J.S. stated, “You can shove your bipolar up your ass.”


                                                      4
¶6     Waples testified that MSH was the least restrictive placement for J.S. because her

history showed she does not think she has a mental illness. Waples opined that J.S.

would not seek treatment if she did not believe she was ill. Waples testified outpatient

community based programs such as the Program for Assertive Community Placement,

the Journey Home, or St. Peter’s Behavioral Health Unit were not appropriate because

they are voluntary and would require J.S. to seek help. Waples testified that J.S. told her

she did not need help or need to take psychotropic medications.

¶7     The record indicates that J.S.’s counsel attended Waples’s evaluation of J.S. at the

Journey Home and also obtained an independent examination from another professional

person, Dr. Bowman Smelko (Dr. Smelko). J.S.’s counsel chose not to present testimony

from the independent evaluation.       On cross-examination of Waples, J.S.’s counsel

established many facts in support of her client’s position that the petition should be

dismissed, including J.S. had called 911 on her own, seeking transportation to the Center

for Mental Health; J.S. agreed to go to the hospital with police; J.S. understood the need

to take care of her wound; J.S. voluntarily took her medications during her prior detention

at MSH; J.S. voluntarily took medication to stabilize her acute mental distress while at St.

Peter’s Hospital prior to transfer to the Journey Home; and J.S. was not responsible for

knowing the timing of her medications when someone else was responsible for giving

them to her. J.S.’s counsel argued that the court should dismiss the petition because J.S.

had sought help when needed and accepted help each time it was offered. J.S.’s counsel

vigorously maintained that being homeless and not taking care of medical problems is

insufficient for the State to meet its burden to show that a person should be involuntarily


                                             5
committed.2 Counsel also consistently maintained that the State had two burdens to

meet: that commitment was necessary and that the commitment must be to the least

restrictive placement. Counsel argued that the State failed to meet each burden and,

consequently, the petition should be dismissed.

¶8      The District Court found counsel’s argument on behalf of J.S. compelling and

expressed its unwillingness to order commitment to MSH simply because a person is

homeless and unable to take care of medical needs. Although the court agreed that J.S.

initiated a call for services, the court nonetheless found the State had established J.S.’s

mental disorder was interfering with her ability to care for her severe infection. The court


2
   J.S. argues, and the State concedes, that her counsel incorrectly represented to the court that community
placement was not an option, unless the court made findings pursuant to § 53-21-126(1)(d), MCA. We
are unable to conclude, however, that the record establishes such a contention is warranted. In response
to the court’s inquiry about where a reference in the code to community placement is located, J.S.’s
counsel explained, prior to the court having made any findings pursuant to § 53-21-126, MCA, that the
most restrictive placement which may be ordered pursuant to a finding under § 53-21-126(1)(d), MCA, is
a commitment to a community facility or program. J.S.’s counsel again revisited § 53-21-126(1)(d),
MCA, during the hearing and indicated a finding pursuant to § 53-21-126(1)(d), MCA, was one of two
options that would ensure a community placement of J.S., the other option still remaining was diversion.
J.S.’s counsel continued to explain that even if the State met its burden to show “she meets [the] criteria
for commitment [under § 53-21-126, MCA] . . . the statute regarding disposition, [§ 53-21-127, MCA],
clearly says that the Court has to then place her in the least restrictive placement. Just because, even if
they met that burden [under § 53-21-126, MCA] . . . that doesn’t mean . . . you just go straight up to the
State Hospital.” (Emphasis added).
          The dialogue between the parties and the court was informal and, importantly, unclear as to
which sections of Title 53 were being discussed. It appeared, at times, the parties were discussing
diversion, which is a community placement that suspends the commitment hearing in such a manner that
it is unnecessary for the court to make any findings pursuant to § 53-21-126(1)(a)-(d), MCA, a position
J.S.’s counsel was advocating. It also appears the court “blended” the trial with the posttrial disposition
hearing, which J.S.’s counsel clearly understood were separate considerations and endeavored to explain
to the court the inquiries relevant under § 53-21-126, MCA (trial), and those under § 53-21-127, MCA
(posttrial disposition). Admittedly, J.S.’s counsel was not always clear in her discussion of community
placement within the context of diversion, trial, and disposition; however, based on this record, we are
unwilling to ascribe to J.S.’s counsel a misrepresentation of the law to the effect that a community
placement was not an option if the court made findings pursuant to § 53-21-126(1)(a)-(c), MCA.
Furthermore, even were we to conclude that J.S.’s counsel made such a misstatement of the law, counsel
continued to advocate that the petition should be denied because the State had not met its burden pursuant
to § 53-21-126, MCA, and that MSH was not the least restrictive placement.


                                                     6
lamented that it had no alternatives other than MSH, having ascertained that the Journey

Home was not an option, but determined that J.S’s history supported a conclusion that

J.S. would not take her medication, which was necessary to stabilize her mental disorder.

The court’s conclusion was supported by its finding that “the respondent’s inability to

consent to voluntary medication and her recent track record make her inappropriate for

community based placement.”

                               STANDARD OF REVIEW

¶9     Issues of due process and right to counsel in a civil commitment proceeding are

subject to plenary review. In re Mental Health of T.M., 2004 MT 221, ¶ 7, 322 Mont.

394, 96 P.3d 1147. Claims of ineffective assistance of counsel are mixed questions of

law and fact that this Court reviews de novo. In re J.S.W., 2013 MT 34, ¶ 26, 369 Mont.

12, 303 P.3d 741.

                                    DISCUSSION

¶10    J.S. argues that she was denied the effective assistance of counsel during her

involuntary commitment proceeding in each of the areas of representation identified in In

re Mental Health of K.G.F., 2001 MT 140, 306 Mont. 1, 29 P.3d 485. We take this

opportunity to consider our decision in K.G.F.; the principles upon which the right to

counsel are premised; and the standards enunciated in K.G.F. to assess whether a person

has been deprived of that right.

¶11    In K.G.F. we addressed for the first time whether a respondent in an involuntary

commitment proceeding has a constitutional right to effective assistance of counsel and,

if so, how such effectiveness should be measured. We recognized that the Legislature


                                           7
had declared that a purpose of our laws governing the treatment of the seriously mentally

ill was to “ensure that due process of law is accorded any person coming under the

provisions of this part.” Section 53-21-101(4), MCA; K.G.F., ¶ 26. Importantly, in

furtherance of that purpose and regarding the right to counsel, the Legislature expressly

provided that a person has the right to be represented by counsel, § 53-21-115(5), MCA;

that a person who is indigent “shall” have counsel from the office of the public defender

appointed, § 53-21-116, MCA; and that the right to counsel may not be waived,

§ 53-21-119(1), MCA.        Reading these statutory provisions together, this Court

determined that the Legislature intended counsel’s representation of a person against

whom a petition was filed to play a vital role in affording that person the basic rights of

due process of law. K.G.F., ¶¶ 26, 30.

¶12    We also acknowledged in K.G.F. that the Legislature had established other due

process rights to be afforded persons in civil commitment proceedings. These additional

safeguards include the right to a professional person of the person’s own choosing,

§ 53-21-118, MCA; if indigent, the right to have a professional person of the person’s

own choosing appointed who will be compensated from the public funds of the county

where the respondent resides, § 53-21-118, MCA; the right to notice reasonably in

advance of a hearing, § 53-21-115(1), MCA; the right to be present and to present

evidence and witnesses, § 53-21-115(2), MCA; the right to know in advance the names

and addresses of witnesses, § 53-21-115(3), MCA; the right to cross-examine witnesses,

§ 53-21-115(4), MCA; the right to remain silent, § 53-21-115(6), MCA; the right to

proceed in accordance with the rules of evidence, § 53-21-115(7), MCA; the right to be


                                            8
dressed in the person’s own clothes, § 53-21-115(10), MCA; the right to refuse

medication prior to a hearing, unless it is lifesaving, § 53-21-115(11), MCA; and the right

to voluntarily take necessary medications prior to any hearing, § 53-21-115(12). These

rights are “[i]n addition to any other rights that may be guaranteed by the constitution of

the United States and of this state . . . .” Section 53-21-115, MCA.

¶13    We also noted in K.G.F. that the rights afforded a person in a civil commitment

proceeding correspond to many “criminal” due process rights. See K.G.F., ¶ 33 (“[I]n

numerous respects the procedural due process rights of an involuntary commitment

patient-respondent are identical to those afforded an accused criminal defendant . . . .”)

Although a civil commitment proceeding is not criminal, it nonetheless involves

important individual interests, not at risk in a usual civil case. Here, statutory protections

under Title 53, chapter 21, MCA, were established by the Legislature “because of the

calamitous effect of a commitment . . . .” In re Shennum, 210 Mont. 442, 450-51, 684

P.2d 1073, 1078 (1984). See also Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780,

1785 (1992) (stating that freedom from bodily restraint has always been at the core of the

liberty protected by the Due Process Clause from arbitrary government action); Mathews

v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976) (stating that due process is

“flexible and calls for procedural protections as the particular situation demands”). Thus,

the civil commitment statutes provide numerous procedural protections akin to those in a

criminal prosecution, and which are not otherwise afforded a party in a civil proceeding.

¶14    In K.G.F., this Court explained that “where a state statute affords an individual

subject to involuntary commitment with the right to counsel, the legislature could not


                                              9
have intended that counsel could be prejudicially ineffective.” K.G.F., ¶ 30. The Court

concluded that the statutory right to counsel under Title 53, chapter 21, MCA, provides

an individual subject to an involuntary commitment proceeding the right to effective

assistance of counsel. “In turn, this right affords the individual with the right to raise the

allegation of ineffective assistance of counsel in challenging a commitment order.”

K.G.F., ¶ 31. The Court’s conclusion that the statutory right of counsel could not be

realized unless it was the right to effective assistance of counsel was sound and remains

well-reasoned. We continue to endorse such a conclusion and its underlying rationale.

¶15    In K.G.F. we also recognized that the statutory right to counsel “explicitly and

implicitly garner protection under both the federal and the Montana constitutions.”

K.G.F., ¶ 27. Importantly, and in our judgment correctly, K.G.F. rejected the notion that

the right to counsel flows from the Sixth Amendment to the United States Constitution or

Article II, Section 24 of the Montana Constitution, both of which expressly provide that

the accused in a criminal prosecution shall have the assistance of counsel. K.G.F.,

¶¶ 27-28. A respondent is neither accused nor charged with a crime; the proceeding

against a respondent is civil, attendant with the rules of civil procedure; and a civil

commitment is not pursued for the purpose of penalizing the respondent, but rather for

the purpose of ensuring the safety and treatment of the respondent.           In K.G.F. we

concluded that the right to counsel derived from Montana’s Due Process Clause

contained in Article II, Section 17 (“No person shall be deprived of life, liberty, or

property without due process of law.”); but was also constitutionally premised upon

Article II, Section 4 (“The dignity of the human being is inviolable . . . ”) and Article II,


                                             10
Section 10 (“The right of individual privacy is essential . . . and shall not be infringed

without the showing of a compelling state interest.”). We similarly conclude that the

right to effective assistance of counsel in civil commitment proceedings is premised upon

the Fourteenth Amendment to the federal Constitution and Article II, Sections 17, 4, and

10 of Montana’s Constitution. However, while we recognize that the right to dignity and

privacy are rooted in our civil commitment statutes and jurisprudence, to the extent we

are assessing the performance of counsel and counsel’s role in ensuring a fair trial, our

inquiry is necessarily focused on principles of due process. The measure of counsel’s

effectiveness in protecting the guarantee of a fair trial occurs through the Due Process

Clauses of the federal and state Constitutions.

¶16    Those courts that have recognized the right to effective assistance of counsel in

involuntary commitment proceedings have premised the right on each particular state

statute providing for counsel, as well as due process requirements of both federal and

state Constitutions.   All courts recognizing a right to counsel in civil commitment

proceedings have drawn on Sixth Amendment precedent established by Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and its progeny, to inform the due

process inquiry and determine whether counsel has acted effectively in protecting the

guarantee of a fair trial. In K.G.F., however, we rejected the standard enunciated in

Strickland concluding that it “simply does not go far enough to protect the liberty

interests of individuals . . . who may or may not have broken any law, but who, upon the

expiration of a 90-day commitment, must indefinitely bear the badge of inferiority of a

once ‘involuntarily committed’ person with a proven mental disorder.” K.G.F., ¶ 33. In


                                             11
K.G.F. the Court concluded “our legal system of judges, lawyers, and clinicians has

seemingly lost its way in vigilantly protecting the fundamental rights of such

individuals,” K.G.F., ¶ 42, and determined there was an “obvious systematic failure of

the involuntary civil commitment hearing process itself.” K.G.F., ¶ 49. The Court stated

its “aim” was “on the failure of the system as a whole, one that through the ordinary

course of the efficient administration of a legal process threatens to supplant an

individual’s due process rights . . . .” K.G.F., ¶ 49. The Court rejected Strickland’s

presumption of reasonable professional assistance because such a presumption was

flawed in a proceeding that “routinely accepts--and even requires--an unreasonably low

standard of legal assistance and generally disdains zealous, adversarial confrontation.”

K.G.F., ¶ 35.

¶17    Although the Legislature had already set forth numerous procedural safeguards,

which effectively distinguished civil commitment proceedings from usual civil cases, in

K.G.F. this Court nonetheless “enhance[d]” these statutory protections by “adopt[ing]

certain portions” of the National Center for State Courts’ Guidelines for Involuntary Civil

Commitment. K.G.F., ¶ 70. We identified five “critical areas” and established specific

tasks for counsel to undertake in order to effectively represent a client. Generally, those

areas are described as follows: (1) there must be an immediate appointment of competent

counsel with specialized training or supervised on-the-job training in the duties, skills,

and ethics of representing civil commitment respondents, K.G.F., ¶ 71; (2) specific tasks

required of counsel during the initial investigation were set forth by the Court, K.G.F.,

¶¶ 74-75; (3) specific tasks and inquiries related to the client interview and how it was to


                                            12
be conducted were established by the Court, K.G.F., ¶¶ 77-80; (4) the right of the patient

to have counsel present during the evaluation by the professional person and the right to

remain silent were explained, K.G.F., ¶¶ 81-83; and (5) the Court set forth numerous

requirements concerning counsel’s vigorous advocacy, establishing a presumption that

the client wishes not to be involuntarily committed, K.G.F., ¶¶ 84-89.

¶18    Upon thorough consideration, we are convinced that many of the circumstances

which impelled this Court to reject Strickland, have proven unfounded. Our reasons are

several. First, the record frequently will not contain the details of counsel’s training and

qualifications, or discussions with the respondent. The record similarly will not contain

evidence of the attorney’s investigations or strategy. Thus, evidence pertaining to many

of the “critical areas” of representation identified in K.G.F. is not susceptible to direct

review on a challenge to an involuntary commitment. Second, we reject that there is “an

unreasonably low standard of legal assistance” provided respondents in civil commitment

proceedings.   We have found little evidence of such in the numerous involuntary

commitment proceedings reviewed by this Court since K.G.F. Third, civil commitment

proceedings were contemplated by the Legislature to move quickly because respondents

against whom a petition has been filed have not yet been found to meet the criteria for an

involuntary commitment and the trial may result in dismissal of the petition, an outcome

respondent’s counsel should not seek to delay. If the respondent is in need of treatment

sufficient to meet the criteria for commitment then detention in a temporary facility

without treatment exacerbates the patient’s already acute mental health crisis. Finally,

strict compliance with Montana’s civil commitment statutes has always been required,


                                            13
even when there is no allegation counsel was performing ineffectively. Regardless of

counsel’s performance, a commitment can be reversed based on a failure to strictly

adhere to the statute; reevaluating the standard by which effectiveness of counsel is

assessed, therefore, does not impugn our jurisprudence requiring strict adherence to civil

commitment statutes.3

¶19     We affirm our conclusion in K.G.F. that the Sixth Amendment and Article II,

Section 24 of Montana’s Constitution do not apply to civil commitment proceedings. We

also affirm that the right to the effective assistance of counsel in civil commitment

proceedings is grounded, not only in Montana’s express statutes providing for the right to

counsel, but also in the Due Process Clause of the United States Constitution and

Montana’s Constitution, Article II, Section 17 (“No person shall be deprived of life,

liberty, or property without due process of law.”); Article II, Section 4 (“The dignity of

the human being is inviolable.”); and Article II, Section 10 (“The right of privacy is

essential to the well-being of a free society and shall not be infringed . . . .”). We reject,

however, the premises upon which the Court jettisoned Strickland and its progeny and, in

its place, adopted a formalistic approach mandating “deliberate steps counsel should take

to effectively protect his or her client’s best interests . . . and ensure that the client

receives a formal and fair adversarial hearing . . . .” K.G.F., ¶ 64. Accordingly, while we

affirm that portion of K.G.F. establishing the statutory and constitutional basis for the

right to effective assistance of counsel in civil commitment proceedings, we overrule the

3
  We have never held, however, that de minimus errors which do not result in prejudice to the respondent
will serve as a basis for reversal. See In re M.K.S., 2015 MT 146, ¶¶ 12-23, 379 Mont. 293, 350 P.3d 27
(declining to apply plain error doctrine to a statutory violation when respondent was not prejudiced).


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measure or standard enunciated in K.G.F. for assessing whether a person has been

deprived of that right.           Some examination of Strickland—the standard by which

effectiveness of counsel is universally measured by other states in civil commitment

proceedings—is necessary.

¶20      In Strickland, the Supreme Court “recognized that the Sixth Amendment right to

counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” 466

U.S. at 684, 104 S. Ct. at 2063. However, the “guarantees [of] a fair trial [occur] through

the Due Process Clauses” which are informed by “the several provisions of the Sixth

Amendment, including the Counsel Clause . . . .” Strickland, 466 U.S. at 684-85, 104 S.

Ct. at 2063. The Sixth Amendment’s Counsel Clause thus informs the due process

inquiry by advising that “a fair trial is one in which evidence subject to adversarial testing

is presented to an impartial tribunal for resolution of issues defined in advance of the

proceeding.”4 Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. Based on principles of due

process, the Supreme Court recognized that the right to the assistance of counsel

“envisions counsel’s playing a role that is critical to the ability of the adversarial system

to produce just results.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. Hence, the Sixth

Amendment informs the due process inquiry and defines the “basic elements of the fair

4
    The Counsel Clause of the Sixth Amendment to the United States Constitution provides:

         In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
         by an impartial jury of the State and district wherein the crime shall have been
         committed, which district shall have been previously ascertained by law, and to be
         informed of the nature and cause of the accusation; to be confronted with the witnesses
         against him; to have compulsory process for obtaining witnesses in his favor, and to have
         the Assistance of Counsel for his defense.

U.S. Const. Amend. VI.


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trial.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. “In giving meaning to the

requirement [of effective assistance of counsel], however, we must take its purpose—to

ensure a fair trial—as the guide.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.

Accordingly, “[t]he benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at

686, 104 S. Ct. at 2064.

¶21    The Supreme Court determined that “specific guidelines are not appropriate.”

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The right to effective assistance of

counsel “relies instead on the legal profession’s maintenance of standards sufficient to

justify the law’s presumption that counsel will fulfill the role in the adversary

process . . . .” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65. “Prevailing norms of

practice as reflected in American Bar Association standards and the like . . . are guides to

determining what is reasonable, but they are only guides.” Strickland, 466 U.S. at 688,

104 S. Ct. at 2065. As explained in Strickland:

       No particular set of detailed rules for counsel’s conduct can satisfactorily
       take account of the variety of circumstances faced by defense counsel or the
       range of legitimate decisions regarding how best to represent a criminal
       defendant. Any such set of rules would interfere with the constitutionally
       protected independence of counsel and restrict the wide latitude counsel
       must have in making tactical decisions . . . . Moreover, the purpose of the
       effective assistance guarantee of the Sixth Amendment is not to improve
       the quality of legal representation, although that is a goal of considerable
       importance to the legal system. The purpose is simply to ensure that
       criminal defendants receive a fair trial.

466 U.S. at 688-89, 104 S. Ct. at 2065.



                                            16
¶22    In order to prevail on an ineffectiveness claim under Strickland, a defendant must

establish:   (1) that counsel’s performance was deficient; and (2) that the deficient

performance prejudiced the defense, depriving the defendant of a fair trial. “The proper

measure of attorney performance remains simply reasonableness under prevailing

professional norms.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Moreover, judicial

scrutiny of attorney performance must be “highly deferential” since it is “all too tempting

for a defendant to second-guess counsel’s assistance after conviction or adverse

sentence . . . [or] for a court . . . to conclude that a particular act or omission of counsel

was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. In order to fairly

assess attorney performance, every effort must be made “to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.

at 689, 104 S. Ct. at 2065.        Because of the countless ways to provide effective

representation and the difficulties inherent in eliminating the distorting effects of

hindsight, there is a “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance . . . .” Strickland, 466 U.S. at 689, 104 S. Ct.

at 2065.

¶23    Strickland thus explains that the Sixth Amendment right to counsel is needed in

order to protect the fundamental right to a fair trial guaranteed by the Due Process

Clause. In Strickland, the Sixth Amendment, including the Counsel Clause, defined the

basic elements of the fair trial in a criminal prosecution. 466 U.S. at 684-85, 104 S. Ct. at

2063. Importantly, the interests of a criminal defendant “are of such magnitude that


                                             17
historically and without any explicit constitutional requirement they have been protected

by standards of proof designed to exclude as nearly as possible the likelihood of an

erroneous judgment.” Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808

(1979). This is accomplished under the Due Process Clause by requiring the State to

prove guilt of an accused beyond a reasonable doubt. Addington, 441 U.S. at 423-24, 99

S. Ct. at 1808; In re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J.,

concurring).5

¶24     “In a civil commitment state power is not exercised in a punitive sense.”

Addington, 441 U.S. at 428, 99 S. Ct. at 1810; K.G.F., ¶ 63. While counsel has an

adversarial role to play in the proceeding, “the legislated involuntary commitment

process must, as a matter of public policy, strive to maintain the ‘therapeutic influence’ of

the legal system on the individual.” K.G.F., ¶ 63 (citation omitted). There is no dispute

that a civil commitment constitutes a significant deprivation of liberty, often involving

the potential for compelled medication, which is among the historic liberties protected by

the Due Process Clause. Vitek v. Jones, 445 U.S. 480, 492, 100 S. Ct. 1254, 1263 (1980)

(citation omitted). Moreover, “an erroneous commitment is sometimes as undesirable as

5

        The requirement that guilt of a criminal charge be established by proof beyond a
        reasonable doubt dates at least from our early years as a Nation. The “demand for a
        higher degree of persuasion in criminal cases was recurrently expressed from ancient
        times [though] its crystallization into the formula ‘beyond a reasonable doubt’ seems to
        have occurred as late as 1798. It is now accepted in common law jurisdictions as the
        measure of persuasion by which the prosecution must convince the trier of fact of all the
        essential elements of guilt.”        Although virtually unanimous adherence to the
        reasonable-doubt standard in common-law jurisdictions may not conclusively establish it
        as a requirement of due process, such adherence does reflect a profound judgment about
        the way in which law should be enforced and justice administered.

In re Winship, 397 U.S. at 361-62, 90 S. Ct. at 1071 (citations omitted).


                                                    18
an erroneous conviction.”      Addington, 441 U.S. at 428, 99 S. Ct. at 1810.           Civil

commitment proceedings, however, employ an intermediate level or standard of proof—

the “clear and convincing” standard—which is frequently invoked to protect important

individual interests in civil cases. Montana requires that “physical facts” be proven

beyond a reasonable doubt, and that the standard of proof as to all other matters is clear

and convincing. Section 53-21-126(2), MCA. Consistent with the burden of proof in

areas of medical discipline, Montana’s civil commitment statutes require that “the

respondent’s mental disorder must be proved to a reasonable medical certainty.” Section

53-21-126(2), MCA. Therefore, to meet due process demands, the standard of proof in

Montana’s civil commitment proceeding informs the factfinder that the proof must be

greater than the preponderance of the evidence standard; but, with the exception of

physical facts, less than the reasonable doubt standard. The standard of proof in a civil

commitment proceeding is clear and convincing evidence.

¶25    In consideration of the foregoing, we do not accept the proposition in K.G.F. that

Strickland “simply does not go far enough to protect the liberty interests of individuals”

who may be involuntarily committed, K.G.F., ¶ 33, when the Strickland standard is

sufficient to protect the interests of a criminal defendant which “are of such magnitude

that historically and without any explicit constitutional requirement they have been

protected by standards of proof designed to exclude as nearly as possible the likelihood of

an erroneous judgment.” Addington, 441 U.S. at 423, 99 S. Ct. at 1808. The clear and

convincing standard of proof required in a civil commitment is high because of the

important individual interests at stake; it is still, however, a lesser standard of proof than


                                             19
in a criminal prosecution. While the liberty interest at stake in a civil commitment

proceeding is significant, it is no greater than the liberty interest at stake in criminal cases

where Strickland applies.

¶26    We also conclude the analysis and standard enunciated in Strickland is flexible

and will allow professional norms and guidelines to be considered, but not determinative,

in evaluating whether counsel’s performance was reasonable considering all the

circumstances. The “critical areas” of representation identified in K.G.F. may be useful

and perhaps will provide guidance for determining what is reasonable in the context of

prevailing professional norms and circumstances of a particular case. Importantly, we are

cognizant that our function, here, is that of a court guided by our Constitution and

statutes; not as a professional association, which functions to improve and monitor the

quality of its profession based upon input from practitioners in particular fields of

expertise. Our purpose is simply to ensure that a respondent has received the effective

assistance of counsel designed to protect her guarantee of a fair trial. To that end, just as

the Sixth Amendment right to counsel defines the basic elements of a fair trial guaranteed

by the Due Process Clause, the procedural safeguards embodied by the Legislature in

Title 53, chapter 21, MCA, inform the inquiry as to counsel’s primary obligation in civil

commitment proceedings. Application of Strickland will allow other considerations, as

well, which may be relevant under the circumstances and are “[i]n addition to any other

rights which may be guaranteed by the constitution of the United States and of this

state . . . .” Section 53-21-115, MCA. We further conclude that to fairly assess counsel’s

performance every effort must be made to eliminate the distorting effects of hindsight


                                              20
and to evaluate counsel’s conduct from counsel’s perspective at the time. Accordingly,

“[a] court must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 671, 104 S. Ct.

2056. We do not find such a presumption inconsistent with the requirement that there be

strict compliance with the civil commitment statutes; we have and will continue to

require strict compliance to the civil commitment statutes regardless of counsel’s

performance. Henceforth, Strickland will be the standard by which this Court measures

the effectiveness of counsel in civil commitment proceedings.

¶27    We turn now to the case at hand. Aside from J.S.’s contention that counsel

misapprehended the district court’s authority to order a community placement, a

contention we cannot fairly draw from the record, J.S. argues that her counsel failed to

investigate community placement options or, alternatively, failed to request a continuance

of the disposition hearing to allow an adequate investigation into alternatives. First, our

review of the record convinces us that J.S.’s counsel was representing her client’s wishes

by seeking to have the petition dismissed with no community placement commitment at

all. J.S.’s counsel appreciated that it was the State’s burden, not J.S.’s, to establish by

clear and convincing evidence that there was a need for commitment in the first instance.

J.S.’s counsel endeavored to hold the State to its burden. Despite the therapeutic purpose

of a commitment proceeding, it nonetheless constitutes an effort by the State to deprive

an individual of a significant liberty interest. The burden of proving that a commitment is

necessary therefore remains with the State and a respondent has the right to require the

State to meet its burden of proof.


                                            21
¶28    Second, it remained clear that there were no appropriate community placement

options for J.S., since she denied having a mental illness and did not believe she needed

to take stabilizing medication. Section 53-21-127(3)(b), MCA, does authorize the court

to “commit the respondent to a community facility or program or to any appropriate

course of treatment . . . as provided in 53-21-149 . . . .” Section 53-21-149, MCA, in

turn, provides that “the court may order the following conditions for treatment in a

community facility or program . . . including but not limited to following a treatment plan

developed pursuant to 53-21-150 . . . .” If a court orders a treatment plan, the chief

medical officer or designee of the facility at which the respondent is being treated must

submit a treatment plan to the court, which the court may either accept or require a

revised treatment plan that is “approved by a mental health professional.”

Section 53-21-150(2) and (5), MCA.         Here, Waples was the only mental health

professional who presented medical evidence. Waples did not support treating J.S. in a

community facility or program, or recommend a course of treatment as provided in

§ 53-21-149, MCA. Importantly, J.S.’s counsel secured an expert, Dr. Smelko, who

evaluated J.S. and did not testify for J.S., presumably because Dr. Smelko was not

disputing the need for treatment of J.S. at MSH.              Notwithstanding, Waples’s

recommendation that commitment to MSH was the least restrictive placement option was

clearly supported by the evidence: J.S. was agitated, irritable, and “posturing” towards

other residents; J.S. did not believe she had a mental illness, despite having an extensive

history of illness and commitments; J.S. did not believe medication to treat her mental

illness was necessary; and J.S. had a severe, potentially life-threatening injury, which was


                                            22
not being adequately cared for by J.S. due to her mental illness.        It was similarly

unnecessary for J.S.’s counsel to request a continuance of the disposition hearing to

explore placement options since J.S.’s counsel had already consulted with Dr. Smelko.

Unfortunately, J.S. did not believe she had a mental illness and would not accept the need

to take stabilizing medication, thus rendering a community placement futile.           We

conclude J.S.’s counsel was not deficient for failing to present alternatives which clearly

were not appropriate, nor is it necessary to remand for a hearing to determine why

evidence of alternative placements was not presented.

¶29    J.S. also argues that her counsel failed to object to inadmissible hearsay evidence

when Waples testified to background information that J.S. called 911 and voluntarily

agreed to go to the emergency room. However, J.S.’s counsel used these facts to argue

the petition should be dismissed.       J.S. also argues that her counsel’s failure to

immediately object to inadmissible hearsay evidence Waples provided regarding J.S.’s

behavior at the Journey Home, led the court to rely on the inadmissible testimony. The

court though overruled the objection and considered it anyway, noting the information

was from Waples’s report which was the basis for Waples’s opinion. The court’s ruling

on an objection which actually was made, especially in the context of a bench trial, does

not establish deficient performance. Further, testimony that J.S. would not be accepted

into the Journey Home was in response to a question specifically asked by the court.

¶30    J.S. contends she was denied the right to testify at trial and her right to remain

silent during Waples’s evaluation, specifically when the State relied upon her refusal to

answer Waples’s questions about how to take care of her wound. The record does not


                                            23
support J.S.’s argument that J.S. was prevented from testifying or that J.S. wanted to

testify because she was frustrated with her counsel’s performance.            While remand

remains an appropriate option under some circumstances, we do not find that those exist

here. Regarding the State’s reliance on J.S.’s failure to answer Waples’s questions about

taking care of her wound during Waples’s evaluation, § 53-21-115(6), MCA, which

provides for the right to remain silent, does not state that the respondent’s failure to speak

is inadmissible. The statute merely indicates that the respondent may not be forced to

testify and otherwise has the right to remain silent. The right to remain silent embodied

in § 53-21-115(6), MCA, is a statutory right, which garners no protection under the Fifth

Amendment applicable to criminal proceedings.

¶31    We conclude that J.S.’s counsel effectively assisted J.S. in her civil commitment

proceeding. J.S.’s counsel held the State to its burden of proof and insisted on dismissal

of the petition arguing that a person cannot be committed solely on the basis that they are

homeless and have a severe medical condition. J.S.’s counsel cannot be faulted for the

lack of available resources and alternatives, due in part to her client’s refusal to

acknowledge her mental illness and the corresponding need for medication.                The

testimony established that J.S.’s potentially life-threatening infection was exacerbated by

her mental illness; an illness J.S. refused to acknowledge. J.S.’s counsel competently and

vigorously argued for J.S. and it is unnecessary to remand for an evidentiary hearing.

                                      CONCLUSION

¶32    We affirm K.G.F. to the extent it recognized a statutory right to effective

assistance of counsel and a right to counsel premised upon the federal Due Process


                                             24
Clause and Montana’s right of due process contained in Article II, Section 17. We also

affirm the conclusion reached in K.G.F. that a respondent in a civil commitment

proceeding does not have a Sixth Amendment right to counsel. We clarify K.G.F. by

holding that, while our civil commitment statutes and jurisprudence are rooted in the right

to dignity (Article II, Section 4) and right of privacy (Article II, Section 10), the

effectiveness of counsel in protecting the guarantee of a fair trial is based on principles of

due process. We overrule K.G.F. to the extent that it requires a formalistic approach to

measure counsel’s effectiveness; that “critical areas” of representation must be assessed

in measuring counsel’s performance; and that it repudiates application of Strickland in

civil commitment proceedings. The standards and principles enunciated in Strickland for

measuring the effectiveness of counsel are henceforth to be applied in civil commitment

proceedings. Finally, we conclude the statutory rights embedded in Title 53, chapter 21,

MCA, inform the inquiry of whether a respondent has received the effective assistance of

counsel, although the enumerated statutory safeguards are not exclusive and

circumstances of a particular case may dictate other considerations.

¶33    Applying the foregoing to the case sub judice, we reject J.S.’s claim that she did

not receive the effective assistance of counsel during her commitment proceeding. J.S.’s

order of commitment is affirmed.



                                                  /S/ LAURIE McKINNON




                                             25
We Concur:

/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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