In re B.H.

430 P.3d 1006

2018 MT 282

In the MATTER OF: B.H., Respondent and Appellant.

DA 17-0090

Supreme Court of Montana.

Submitted on Briefs: September 5, 2018

Decided: November 27, 2018

For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Ryan W. Aikin, Assistant Attorney General, Helena, Montana, Martin D. Lambert, Gallatin County Attorney, Deborah Pratt, Deputy County Attorney, Bozeman, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶ 1 B.H. appeals from the findings of fact, conclusions of law, and order entered by the Eighteenth Judicial District Court, Gallatin County, committing him to the Montana State Hospital. We affirm and consider the following issue:

Did the District Court commit plain error regarding the procedural safeguards in § 53-21-122(2)(a), MCA, necessitating appellate review?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 B.H. suffers from bipolar disorder. In late 2016 and early 2017, he suffered a severe manic episode during which he acted in ways his wife confirmed were uncharacteristic. She called police, who took B.H. to the emergency room and then to Hope House, a mental health facility in Bozeman. B.H. was uncooperative at Hope House, refusing treatment and stating he just needed a vacation. B.H. left Hope House against medical advice and was thereafter placed at Hays Morris House, a mental health facility in Butte, because Hope House had reached capacity. B.H. was likewise uncooperative at Hays Morris House, where he refused medication, threatened others, got into arguments, repeatedly removed his clothes, and tore baseboards from his room.

¶ 3 Adrian Utsch, a professional person employed by the Gallatin Mental Health Center, conducted a mental health evaluation of B.H. Based on her findings, Utsch sought initiation of a proceeding to involuntarily commit B.H. to the Montana State Hospital. The commitment petition, filed by the Gallatin County Attorney’s Office, alleged that B.H. had threatened to kill his father and himself, he suffered from a mental disorder, he was substantially unable to provide for his own basic needs, and he was an imminent threat of injuring himself and others. The State’s petition included a list of B.H.’s constitutional and statutory rights.

¶ 4 The District Court, pursuant to § 53-21-122, MCA, determined probable cause existed that B.H. suffered from a mental disorder requiring commitment, appointed counsel for B.H., and scheduled an initial hearing on the State’s petition for January 9, 2017. B.H. attended his initial hearing via video from Hays Morris House in Butte. B.H.’s counsel was present in the courtroom, as was counsel for the state. At the outset of the hearing, B.H. acknowledged that he had seen the State’s petition. After a discussion concerning whether B.H. needed an interpreter, because he kept answering the court in Spanish, B.H. asked whether the court could appoint Eduardo Garcia as his friend. The court agreed to do so, and at that point, B.H. interrupted, whereupon the following exchange occurred:

B.H.: I can have Amanda speak for me. She’s right here.

The Court: Okay, well, Mr.—

B.H.: I will remove myself from the situation right now.

The Court: Okay.

B.H.: Will that speed things up?

The Court: Well, [B.H.], you don’t have to because I, let me tell you what’s going to happen.

B.H.: He’s not listening. I’m going to go out (indecipherable).

The Court: All right. So, let the record show that [B.H.] has decided to step out of the hearing room. He has the right to do that....

...

The Court: Showing that [B.H.] did appear for this hearing by video until he left the room; that I did not have a chance to advise him of his rights but Mr. Rutzke [counsel for B.H.], were you able to do that to a limited extent or?

Mr. Rutzke: I was not, Your Honor. I was not. I will make—

Female Voice: Do you want him to get a copy of his rights?

The Court: Yeah, he will—there’s a copy of his rights attached to the Petition, ma’am, but also, I mean—

Female Voice: Okay.

The Court: —that really what—

Female Voice: Okay.

The Court: —his most important right is he has a right to remain silent and he has a right to the hearing and I’m granting him the hearing—

Female Voice: Um hum (yes).

The Court: —so the fact that his rights have not been affected in any way. I mean I’m protecting his rights basically.

Female Voice: Um hum (yes).

¶ 5 Later, B.H. re-entered the hearing room. The court informed B.H. that a mental health evaluation would be performed by a professional person prior to the commitment hearing, and asked whether B.H. would like a second opinion. The court then scheduled a contested hearing for two days later, on January 11.

¶ 6 At the January 11 hearing, the State presented three witnesses, including two certified professional persons and B.H.’s wife. When B.H. interjected during testimony, the court advised him, "before you say anything to me you need to clear it with ... Mr. Rutzke[,]" because "Mr. Rutzke is here to protect you." B.H. then consulted with Mr. Rutzke and took the stand to offer testimony. After all the evidence had been presented, the District Court noted for the record that "the Court finds and concludes that [B.H.], throughout this proceeding, has received the benefit of all applicable statutes and Constitutional rights to which he is entitled."

¶ 7 After testimony concluded, the District Court orally summarized its findings of fact and conclusions of law and committed B.H. to the Montana State Hospital for a period not to exceed 90 days. Neither Mr. Rutzke nor B.H. objected at any time during the proceedings that the court had failed to properly advise B.H. of his rights or that B.H.’s rights had been violated.

¶ 8 B.H. appeals.

STANDARD OF REVIEW

¶ 9 We review a district court’s civil commitment order "to determine whether the court’s findings of fact are clearly erroneous and its conclusions of law are correct." In re M.K.S. , 2015 MT 146, ¶ 10, 379 Mont. 293, 350 P.3d 27 (citation omitted). "Issues of due process in an involuntary commitment proceeding are subject to plenary review." In re M.K.S. , ¶ 10 (citation omitted).

DISCUSSION

¶ 10 As an initial matter, we observe that B.H.’s appeal of his involuntary commitment is not moot despite the expiration of his 90-day commitment period, because the time period is too short to allow litigation of the appeal, and there is a reasonable possibility that he could be subject to the same action again. In re M.K.S. , ¶ 11. Appeals from involuntary commitments thus fall into an exception to the mootness doctrine for issues that are "capable of repetition, yet evading review." In re M.K.S. , ¶ 11 (citations and internal quotations omitted).

¶ 11 Did the District Court commit plain error regarding the procedural safeguards in § 53-21-122(2)(a), MCA, necessitating appellate review?

¶ 12 B.H. argues that the District Court erred by failing to advise him of his constitutional and statutory rights during his initial appearance, as required in civil commitment proceedings under § 53-21-122(2)(a), MCA. Beyond the advisory requirement, B.H. does not argue that any of his rights were violated. The State acknowledges that the advisory of rights was not provided to B.H. as required by the statute.

¶ 13 B.H. made no objection regarding a rights advisory before the District Court. On appeal, he specifically disclaims he is seeking plain error review of his claim, and instead cites two older commitment cases that state "an exception exist[s]" to the "general rule that issues cannot be raised for the first time on appeal.... where, as in the case of a civil commitment, the substantial rights of an individual were involved." Matter of R.M. , 270 Mont. 40, 45, 889 P.2d 1201, 1204-05 (1995) (citing In re N.B. , 190 Mont. 319, 323, 620 P.2d 1228, 1231 (1980) ); see also In re Mental Health of A.S.B. , 2008 MT 82, ¶ 20, 342 Mont. 169, 180 P.3d 625. B.H. argues that "[a] plain error analysis is not applicable when the district court is fully aware of the law and the legal issue at hand."

¶ 14 The statements from the cases cited by B.H. regarding appellate review of unpreserved issues affecting a litigant’s substantial rights were, although not expressly denominated as such, part of what became this Court’s plain error review doctrine. First formulated specifically in State v. Finley , 276 Mont. 126, 915 P.2d 208 (1996), overruled in part on other grounds by State v. Gallagher , 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817, wherein appellate review of unpreserved issues was acknowledged "where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process," Finley , 276 Mont. at 137, 915 P.2d at 215, the doctrine has encapsulated earlier statements, such as in In re N.B ., 190 Mont. at 323, 620 P.2d at 1231 ("[t]his Court reserves to itself the power to examine constitutional issues that involve broad public concerns to avoid future litigation on a point of law"), and applied uniform standards to application of the Court’s inherent constitutional power of review. See In re M.K.S. , ¶ 13 ("We invoke plain error review ‘where failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process’.... We have repeatedly stated that we will use plain error review sparingly and on a case-by-case basis.") (internal citations and quotations omitted). Citing Finley , we recognized the applicability of the doctrine for review of unpreserved issues in involuntary commitment proceedings in In re Mental Health of J.D.L. , 2008 MT 445, ¶¶ 6-9, 348 Mont. 1, 199 P.3d 805, superseded by statute on other grounds , § 53-21-122(2)...