IN THE MATTER OF: S.M., Respondent and Appellant.
Submitted on Briefs: July 19, 2017
FROM: District Court of the Twentieth Judicial District, In
and For the County of Lake, Cause No. DI 15-5 Honorable
Deborah Kim Christopher, Presiding Judge
Appellant: Nick K. Brooke, Smith & Stephens, P.C.,
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana Steven
N. Eschenbacher, Lake County Attorney, Polson, Montana
The State filed a petition to involuntarily commit S.M. after
he told a friend he was going to commit suicide. At the
initial hearing, S.M. advised the court that he wished to
waive counsel and represent himself. The District Court
ultimately denied S.M.'s request and appointed counsel
over S.M.'s objection. S.M., together with his appointed
counsel, entered into a stipulation for commitment to
community-based treatment. The District Court approved the
stipulation and ordered S.M.'s commitment. On appeal,
S.M. contends that Montana law prohibiting waiver of the
right to counsel violates his rights under the United States
Constitution. We affirm.
AND FACTUAL BACKGROUND
In November 2015, S.M. asked a friend to watch his dog
because he intended to commit suicide. The friend called
9-1-1. When law enforcement officers arrived at S.M.'s
house, they found a noose with a chair below it. S.M. told
them he was going to kill himself. The officers brought S.M.
to the hospital. At the hospital, S.M. denied that he
intended to harm himself, but he told health care providers
"that he does have a rope long enough and has been
looking for someone to look after his dog when he is
gone." S.M. agreed that he needed help but refused any
treatment more restrictive than outpatient treatment. Because
the medical professional who examined S.M. believed
outpatient treatment would be inadequate due to S.M.'s
suicidal ideation, the State filed a petition to
involuntarily commit S.M. The District Court determined that
there was probable cause to proceed with the petition and
appointed a public defender to represent S.M.
At the initial hearing on the petition, S.M. requested that
the District Court dismiss his appointed counsel because he
wished to represent himself. He stated further that "for
the purpose of the record I'd note that I have a right to
proceed pro se under Ferrata [sic] versus California and
shadow counsel may be appointed, but the attorney will not
represent me." The District Court and the public
defender agreed with S.M. that he had "the absolute
right" to represent himself. The District Court then
appointed the public defender "to serve only as
standby counsel." The District Court explained to S.M.
that appointed counsel was merely "backup" whom
S.M. could "use . . . to the extent [S.M.]
On November 20, 2015, Erica Weber, a certified mental health
professional, examined S.M. and submitted her report to the
District Court. Weber reported that S.M.'s symptoms
include "high risk behaviors[, ] impulsivity, and
suicidal ideation" and that S.M. "remain[ed] a high
risk to attempt [suicide] without outside assistance."
She expressed concern that S.M. would not follow through with
a voluntary treatment plan if the District Court dismissed
the involuntary commitment petition. Weber recommended
court-ordered, community-based treatment.
On that same day, standby counsel filed a notice with the
District Court that, pursuant to § 53-21-119(1), MCA,
"[t]he right to counsel may not be waived" in
involuntary commitment proceedings. The notice explained that
under this Court's decision in In re N.A., 2013
MT 255, ¶ 15, 371 Mont. 531, 309 P.3d 27, standby
counsel was insufficient representation.
In response to the notice, the District Court informed S.M.
at the next hearing that he could not waive appointed
counsel. The District Court told S.M. that the proceeding
would continue "in a fashion that doesn't walk all
over the top of your ability to represent yourself."
S.M. protested that he was "very well aware" of his
rights and that he had represented himself in various civil
and criminal proceedings in the past, as well as representing
other people in the tribal court system. He also agreed that
he was in need of mental health intervention.
When the District Court attempted to grant a recess to give
S.M. an opportunity to read Weber's report and to confer
with his counsel, S.M. instead requested to meet with both
his appointed counsel and the prosecutor, "so that we
can get through this and get to the point of the hearing,
which is me getting mental health." During the recess,
the parties negotiated a stipulation in which they agreed
that S.M. suffered from a mental illness and was in need of
commitment. They stipulated that the least restrictive
treatment alternative was placement in a community outpatient
treatment facility. Appointed counsel, the prosecutor, and
S.M. all signed the agreement. The District Court approved
the stipulation and entered an order of commitment requiring
S.M. to comply with the agreed-upon plan of care.
S.M. appeals the commitment order and facially challenges the
prohibition against waiving counsel in civil commitment
proceedings contained in § 53-21-119(1), MCA, as a
violation of his rights under the ...