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In re S.M.

Supreme Court of Montana

October 3, 2017

IN THE MATTER OF: S.M., Respondent and Appellant.

          Submitted on Briefs: July 19, 2017

         APPEAL 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

          For Appellant: Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Steven N. Eschenbacher, Lake County Attorney, Polson, Montana


          Beth Baker Justice.

         ¶1 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.


         ¶2 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.

         ¶3 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.] wish[ed]."

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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 ...

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