Fouts v. Mont. Eighth Judicial Dist. Court, OP 21-0568

Docket NºOP 21-0568
Citation2022 MT 9
Case DateJanuary 18, 2022
CourtUnited States State Supreme Court of Montana

2022 MT 9

KYLE FOUTS, Montana State Hospital Administrator, and ADAM MEIER, Director, Department of Health and Human Services, Petitioners,


No. OP 21-0568

Supreme Court of Montana

January 18, 2022

ORIGINAL PROCEEDING: Petition for Writ of Certiorari, In and For the County of Cascade County, Cause No. CDC-21-052 Honorable John A. Kutzman, Presiding Judge

For Petitioners: Chad G. Parker, Deputy Chief Legal Counsel, Department of Public Health and Human Services, Helena, Montana

For Respondent:Joshua A. Racki, Cascade County Attorney, Amanda L. Lofink, Deputy County Attorney, Great Falls, Montana



Dirk Sandefur, Justice

¶1 By petition filed November 9, 2021, Petitioners Kyle Fouts and Adam Meier in their above-referenced official capacities with the Montana Department of Public Health and Human Services (hereinafter interchangeably MDPHHS) petition this Court for certiorari review of the October 17, 2021 judgment of the Montana Eighth Judicial District Court, Cascade County, in the underlying matter of State v. Hanway, Cause No. CDC-21-052, finding MDPHHS in indirect contempt of referenced orders (directing the Montana State Hospital (MSH) to accept custody and care of the underlying criminal defendant (Hanway) for fitness rehabilitation pursuant to § 46-14-221(2)-(3), MCA) and thus imposing a $500 per-day coercive civil sanction pending subsequent compliance with the subject orders. We reverse.


¶2 This case involves an extensive factual and procedural history. In addition to the limited factual record presented here, we take notice of the referenced proceedings in the underlying matter as detailed by the "summary timeline and undisputed facts" set forth in our prior November 2, 2021 Order in the related matter of Hanway v. Fouts, Cause No. OP 21-0503 (denying Hanway's verified petition for peremptory writ of mandamus compelling MDPHHS to immediately comply with the District Court's underlying August 19, 2021 order of commitment to MDPHHS fitness rehabilitation pursuant to


§ 46-14-221(2)-(3), MCA).[1] In accordance with the undisputed facts noted in our prior November 2, 2021 Order, as supplemented by the limited factual record presented here, the following summary of facts are not subject to genuine material dispute in regard to the pertinent underlying proceedings in State v. Hanway, Cause No. CDC-21-052:

• 2021-01-09: While incarcerated on a City of Great Falls municipal court matter, and after allegedly refusing to eat for several days, Hanway allegedly punched a detention officer in the face through her jail cell food port at the Cascade County Detention Center (CCDC) when the officer delivered food and encouraged her to eat
• 2021-01-20: The State accordingly charged Hanway by Information with Assault on a Peace Officer, a felony in violation of § 45-5-210(1)(a), MCA
• 2021-01-22: Defense counsel filed an unopposed motion pursuant to § 46-14-221(2)(a), MCA, for adjudication of Hanway as "unfit to proceed" based on the prior 2020-10-16 defense-commissioned evaluation of Dr. Donna Zook, Ph.D., in BDC-20-165, that diagnosed Hanway with "disorganized schizophrenia" which rendered her unfit "to proceed and stand trial" as referenced in §§ 46-14-101(1)(a)(i) and -103, MCA.
• 2021-01-29: Pursuant to § 46-14-221(2)-(3), MCA, the District Court accordingly: (1) adjudicated Hanway "unfit to proceed"; (2) suspended the criminal proceeding; (3) committed her "to the custody of" MDPHHS "to be placed at an appropriate [MDPHHS] facility . . . for so long as the unfitness endures or until disposition . . . is made pursuant to [§ 46-14-221, MCA], whichever occurs first";[2] (4) directed the Cascade County Sheriff to


immediately transport Hanway to MSH "without delay" upon coordination with MSH; and (5) set the 90-day review hearing required by § 46-14-221(3)(a), MCA, for April 22, 2021. Upon advisory from MSH that it had no bed-space then available at the MDPHHS Forensic Mental Health Facility (FMHF) at Galen, Montana, and had thus placed Hanway on the FMHF waiting list, the sheriff did not transport her as directed.
• 2021-02-11: Upon notice from MDPHHS of available FMHF bed-space, the sheriff transported Hanway to MSH which accepted her for fitness rehabilitation in accordance with the District Court's 2021-01-29 commitment order in this matter and a similar order in BDC-20-165.
• 2021-04-20: In reference to this matter and the by-then dismissed matter of BDC-20-165, MDPHHS/MSH issued a written evaluation report confirming that Hanway was suffering from "schizoaffective disorder" and that, due to her "severe mental illness," she did not have "the capacity to conform her behavior to the requirements of the law" at the time of the subject offenses.[3] The report further stated, however, that she now "appear[s] to be capable of rational discussions with" defense counsel and was thus "currently fit to proceed."[4]
• 2021-04-22: The District Court conducted the 90-day review hearing required by § 46-14-221(3), MCA. Based on the 2021-04-20 MDPHHS/MSH report, and supplemental hearing testimony of MSH Dr. Virginia Hill, the court adjudicated Hanway fit to proceed and ordered resumption of the previously suspended criminal proceeding.[5]
• 2021-04-23: The District Court reduced Hanway's bail pursuant to her represented motion.


• 2021-04-27: MDPHHS discharged Hanway for transport back to the CCDC, after which her mother bailed her out of jail on her recently reduced bail.
• 2021-05-18: The District Court reset trial in the underlying matter for June 14, 2021.
• 2021-06-01: The District Court granted an unopposed defense motion for a 60-day trial continuance in furtherance of plea negotiations with the State.
• 2021-07-13: Following Hanway's recent June 29, 2021, arrest on a new offense allegedly committed when she was out on bail (later formally charged in DDC-21-492), defense counsel filed a motion for reevaluation of Hanway's fitness to proceed pursuant to § 46-14-202, MCA.
• 2021-08-14: In conjunction with the July 13, 2021 defense motion, Dr. Zook attempted but was unable to conduct a new fitness evaluation due to Hanway's reported refusal to cooperate. Based on "extrapolation" from Hanway's prior condition and circumstances, reported discontinuation of prescribed mental health medication, and referenced recent behavior, Dr. Zook again diagnosed Hanway with "disorganized schizophrenia" and concluded that she was again unfit to proceed.
• 2021-08-19: Based on Dr. Zook's 2020-08-14 evaluation update, [6] the District Court: (1) re-adjudicated Hanway "unfit to proceed"; (2) again suspended the criminal proceeding; (3) committed her "to the custody of" MDPHHS "to be placed in an appropriate [MDPHHS] facility . . . for so long as the unfitness endures or until disposition . . . is made pursuant to [§ 46-14-221, MCA]"; and (4) ordered the sheriff to immediately transport her to MSH on


coordination with MSH. As before, however, upon advisory from MSH that it had no bed-space then available at the MDPHHS FMHF, and that it had thus placed Hanway on the FMHF waiting list, the sheriff again did not transport as directed.
• 2021-10-05: The State, through the Cascade County Attorney, filed a motion for issuance of a contempt/show cause order compelling MDPHHS to either accept custody of Hanway pursuant to the court's 2021-08-19 commitment order "within seven days," or alternatively, appear and show cause why not. The court issued the State's accompanying proposed order that same day.
• 2021-10-14: The District Court conducted a contempt/show cause hearing at which the State, MDPHHS, and Hanway appeared through counsel, with Hanway also present via videoconferencing. The parties presented oral argument, but no evidence. At the close of hearing, the court orally found MDPHHS in indirect contempt of court based on non-compliance with its 2021-10-05 alternative contempt show cause order.

¶3 On October 17, 2021, the District Court issued written findings of fact, conclusions of law, and a "Contempt Order" based on the pertinent procedural history in the underlying matter and the October 14th hearing record. Inter alia, the court found that MDPHHS's counsel made the following unsworn "represent[ations]" of fact:

(1) MDPHHS/MSH "only has six beds allocated for women" at its FMHF;
(2) Hanway was then "'technically' in 9th place on a list of 12 women awaiting admission" to the FMHF unit but, as a practical matter, "may be closer to . . . sixth";
(3) the "other women ahead of [her]" on the waiting list "have been displaying at least equally troubling psychotic behavior"; and
(4) "realistically . . . it would be a month and a half or so," at best, "before she would naturally be admitted."


The court's findings further noted that MDPHHS "had no witnesses present" at the show cause hearing and that it "did not ask to present testimony." The findings further noted, however, that neither the State nor Hanway's counsel disputed MDPHHS's "representations." In its "conclusions of law" the court further concluded, inter alia, that:

(1) the "[c]ourt issued [its] October 5 transport order without a hearing to implement its August 19 commitment order";
(2) MDPHHS's "non-compliance with its" legal obligations "threatens public safety";
(3) state agency "funding and staffing problems [do] not excuse compliance with court orders issued to meet" agency legal duties; and
(4) "[i]t is undisputed that [MDPHHS] has the power to admit" Hanway "now" "for restorative treatment" as ordered pursuant to § 46-14-221(2),

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