                                                                                  November 3 2009




                                   DA 09-0171

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   2009 MT 366




IN THE MATTER OF THE MENTAL HEALTH OF:

L.K.,

         Respondent and Appellant.




APPEAL FROM:     District Court of the Ninth Judicial District,
                 In and For the County of Teton, Cause No. DI 07-002
                 Honorable Laurie McKinnon, Presiding Judge



COUNSEL OF RECORD:

          For Appellant:

                 Robin Meguire; Attorney at Law, Great Falls, Montana

          For Appellee:

                 Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar,
                 Assistant Attorney General, Helena, Montana

                 Joe Coble; Teton County Attorney, Choteau, Montana




                                             Submitted on Briefs: August 26, 2009

                                                        Decided: November 3, 2009


Filed:
                 __________________________________________
                                   Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1        L.K. appeals from the February 26, 2009, order of the District Court of the Ninth

Judicial District, Teton County, committing her to the Montana State Hospital at Warm

Springs for a period not to exceed ninety days. We reverse.

¶2        L.K. presents the following issue for review:

¶3        Whether L.K.’s right to due process was violated when the District Court

conducted the commitment hearing by video conferencing, and then completed the

hearing after L.K. left the video conference room.

                    PROCEDURAL AND FACTUAL BACKGROUND

¶4        On February 23, 2009, the State filed a petition alleging that L.K. suffered from a

mental disorder and that she required commitment.             The District Court held an

emergency hearing the same day, and found that there was probable cause to believe that

L.K. suffered from a mental disorder, that she was a danger to herself or others, and that

the situation required her temporary detention at Warm Springs pending further hearing.

The District Court appointed the Western Montana Crisis Response Team to conduct an

examination of L.K. as provided for in § 53-21-118, MCA., and appointed counsel and a

friend. Professional person Mike Sawicki examined L.K. at Warm Springs, concluding

that she suffered from paranoid schizophrenia, and that she should be involuntarily

committed and medicated because she posed an imminent threat of injury to herself or

others.




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¶5     The combined commitment and disposition hearing was held on February 26,

2009. Judge McKinnon, the County Attorney, and L.K.’s attorney were present in the

Teton County Courthouse in Choteau, Montana, while L.K. and her appointed friend

appeared from Warm Springs through a two-way electronic audio-visual communication

arrangement called Vision Net. This interactive equipment allows persons at different

locations to hear and see each other during a proceeding.

¶6     The District Court only got two sentences into the hearing before L.K. began

interrupting. L.K. stated:

       You are not a judge. I’m here to request a legal hearing, I have done so,
       and I’m now leaving and waiting for someone to send a vehicle to bring me
       to be physically present at a legal hearing with an actual judge, who is
       actually a member of the Bar. You may all go home now.

L.K. left the room at Warm Springs but returned, announcing that she would “sit here as

an observer and listen to you lie.” As the District Court attempted to proceed with the

hearing, L.K. kept interrupting, stating such things as: “There is no hearing, I have not

been speaking while you are speaking. You are not having a legal hearing.” She told

Judge McKinnon “[y]ou are playing make-pretend, you are playing dress up, and you are

committing serious crimes.” After a few minutes, L.K. announced “I’m going to leave

now for my own health because the tension of being present in this little bully game of

pretend trial is not something that I enjoy.” She left the hearing and returned to her room.

¶7     The District Court noted that L.K. had left voluntarily, but that she could return to

the hearing if she chose to do so. The County Attorney also noted L.K.’s absence and

that it implicated the waiver requirements of § 53-21-119, MCA. The District Court


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stated that L.K.’s departure from the hearing did not require a finding of a waiver of

rights under that statute, and L.K.’s attorney agreed. He further agreed that the hearing

could continue in L.K.’s absence. The District Court then heard testimony from several

witnesses including law enforcement officers who had recently dealt with L.K., L.K.’s

appointed friend, and professional person Sawicki. The District Court issued the order

appealed from, committing L.K to Warm Springs for ninety days.

¶8     The facts that led to the commitment arose from 21 calls about L.K. to the Teton

County Sheriff’s Department between February 9 and February 20, 2009. There were

numerous incidents in which she was being loud, confrontational and threatening with

people in Choteau. She confronted people at a school playground and downtown, once

calling children crazy criminals who should not be on the streets and barking at them like

a dog. She confronted people who were cutting a tree on their own property, attempting

to commandeer a truck they were using. She told a deputy who responded that she would

shoot him if she could find a gun. She took a dead, decaying puppy to a veterinarian and

asked that it be “fixed.”

¶9     She attempted to buy a gun at a sporting goods store but was unsuccessful because

the clerk was concerned about her statements and her “wild eyed” demeanor. She went

to the sheriff to ask him to give her a gun and authorization to carry it so that she could

stop the law breakers in town. Her attempts to get a gun concerned the sheriff because

she appeared to be very unstable and unpredictable.

¶10    On appeal L.K. does not contest that these incidents occurred and does not contest

the District Court’s conclusion that she suffers from a serious mental illness that causes

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her to be a danger to others. She has exhibited similar behavior in the past, and it has led

to prior commitments. In the Matter of L.K., 2008 MT 169, 343 Mont. 366, 184 P.3d

353; In the Matter of L.K., 2009 MT 74N.

                               STANDARD OF REVIEW

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

plenary review. In the Matter of T.M., 2004 MT 221, ¶ 7, 322 Mont. 394, 96 P.3d 1147.

                                      DISCUSSION

¶12    A person who is the respondent to a petition for involuntary commitment has

statutory procedural rights, §§ 53-21-115 through -118, MCA, including the right to be

present at any hearing or trial. Section 53-21-116, MCA. Those rights may be waived as

provided by law, except that the right to counsel and the right to treatment may not be

waived. Section 53-21-119, MCA. A commitment hearing may be conducted through

video conferencing unless the respondent objects. Section 53-21-140, MCA.

¶13    L.K. first argues on appeal that she objected under § 53-21-140, MCA, to the use

of video conferencing and that she therefore had the absolute right to be physically

present at the hearing. The record of the February 26, 2009 hearing does not contain an

objection by L.K. or her attorney to the use of video conferencing. L.K.’s evident intent,

as expressed in the record of that hearing, was to disrupt and control the proceeding and

to berate others who were participating.         She was particularly focused on Judge

McKinnon, accusing her of not being a real judge, of not being an attorney and of being a

criminal and liar. She demanded a hearing before a “real” judge who was not an

imposter and criminal. These were the reasons L.K. gave for wanting to be taken to a

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different hearing. She stated no objection to the fact that the proceedings were being

conducted through video conferencing, and her statements on the record cannot be fairly

construed as an objection to the use of video conferencing. Moreover, neither the District

Judge, the county attorney, nor L.K.’s attorney, who were all present at the time, gave

any indication that they construed what L.K. said as an objection to the use of video

conferencing.

¶14   The District Court was not precluded from conducting the commitment hearing

through the use of video conferencing.

¶15   L.K. next contends that the District Court could not conduct the commitment

hearing after she left the video conference area at Warm Springs.      Section 53-21-119,

MCA, governs the waiver of rights in a commitment proceeding, including the right to be

present. Subsection (1) provides that the respondent may waive her procedural rights, or

if she is “not capable of making an intentional and knowing decision, those rights may be

waived by [her] counsel and friend . . . acting together if a record is made of the reasons

for the waiver.” Subsection (2) specifically provides that a respondent’s right to be

present at her commitment hearing “may also be waived” by her attorney and appointed

friend, with the concurrence of the appointed professional person.     If such a waiver is

proffered, the district court must also agree and find that the respondent’s presence would

adversely affect her mental condition.

¶16   While the District Court made it clear on the record that L.K. had the right to

return and participate at any time before the hearing concluded, there are no findings on



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the record sufficient to comply with the express requirements of § 53-21-119(1) or (2),

MCA.

¶17    Under § 53-21-119(1), MCA, L.K. could waive her rights as set out in §§ 53-21-

114 through -118, MCA. If she were not capable of “making an intentional and knowing

decision” then her rights could be waived by her attorney and appointed friend, acting

together, if a record were made of the reasons for the waiver. Here there is no record of a

waiver made by L.K.’s attorney and friend acting together, and no record of any reasons

for such a waiver. Further, there is nothing in the record to show that L.K. was capable

of “making an intentional and knowing decision” to waive her rights as required by § 53-

21-119(1), MCA.

¶18    At the time of the commitment hearing the District Court had determined that

there was probable cause to believe that L.K. suffered from a mental disorder, and the

Warm Springs evaluation had concluded that L.K. was suffering from paranoid

schizophrenia. This, coupled with her behavior at the beginning of the hearing and her

behavior that led to the petition for commitment at least called into question whether she

could make an intentional and knowing decision to waive her right to be present.

Therefore, there was an insufficient record of a waiver under § 53-21-119(1), MCA, of

L.K.’s right to be present at the hearing.

¶19    Under § 53-21-119(2), MCA, L.K.’s right to be physically present at the hearing

could be waived for her by her attorney and appointed friend, with the concurrence of the

professional person and the judge. This waiver must be based upon a finding supported

by facts that:

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             (a) the presence of the respondent at the hearing would be likely to
      seriously adversely affect his mental condition; and
             (b) an alternative location for the hearing in surroundings familiar to
      the respondent would not prevent such adverse effects on his mental
      condition.

Section 53-21-119(2), MCA. While L.K.’s attorney agreed with the District Court’s

statement that § 53-21-119, MCA, did not apply, this was insufficient to comply with

these express requirements of the statute. There was no record that the appointed friend

or professional person concurred with a waiver of L.K.’s right to be present, and there

was no record of findings supported by facts as required by § 53-21-119(2)(a) and (b),

MCA. A waiver of rights should not be presumed. State v. McCarthy, 2004 MT 312, ¶

32, 324 Mont. 1, 101 P.3d 288. Therefore, there was an insufficient record of a waiver

under § 53-21-119(2), MCA, of L.K.’s right to be present at the hearing.

¶20   Absent compliance with § 53-21-119, MCA, the District Court could not conduct

the hearing in L.K.’s absence. The order committing L.K. is reversed.



                                                /S/ MIKE McGRATH

We concur:

/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JIM RICE




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