In re Mental Health of A.S.B.

Decision Date11 March 2008
Docket NumberNo. DA 06-0687.,DA 06-0687.
Citation342 Mont. 169,180 P.3d 625,2008 MT 82
PartiesIn the Matter of the MENTAL HEALTH OF A.S.B.
CourtMontana Supreme Court

For Appellant: Nicholas Aemisegger, Jr., and Greg Hood, Kalispell Public Defender Office, Kalispell, Montana.

For Appellee: Honorable Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Ed Corrigan, County Attorney; Daniel M. Guzynski, Deputy County Attorney, Kalispell, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant A.S.B. was involuntarily committed to the Montana State Hospital after a hearing in the Eleventh Judicial District Court, Flathead County. The District Court concluded that A.S.B. suffered from a mental disorder which was likely to deteriorate to a point where A.S.B. would pose a threat to himself and others. The District Court also concluded that A.S.B.'s mental disorder created an imminent threat of injury to himself or others. A.S.B. appeals the order committing him to the Montana State Hospital. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Is the "deterioration standard" contained in § 53-21-126(1), MCA, unconstitutional?

¶ 4 2. If the "deterioration standard" is constitutional, did the District Court err by finding that A.S.B.'s mental condition will, if left untreated, deteriorate to a point where A.S.B. will pose a threat to himself or others?

¶ 5 3. Did the District Court err by finding that, due to a mental disorder, A.S.B. poses a risk of imminent harm to himself or others?

¶ 6 4. Did the District Court err by attaching and incorporating into its order a written report which was not admitted at the adjudicatory hearing, and if so, was it harmless error?


¶ 7 The Whitefish Police Department and A.S.B. are very familiar with each other. Over a three-year period ending with A.S.B.'s commitment, local law enforcement had approximately thirty contacts with A.S.B., most of which related to reports of suspicious activity. Indeed, A.S.B. was living out of his truck for most of that time, and often parked near homes and businesses for extended periods of time, causing the residents concern. Although A.S.B.'s activities were normally innocent, Whitefish police would keep an eye on him to make sure he knew they were watching him.

¶ 8 On August 30, 2006, Whitefish police officer Douglas Blalack was driving through the Super One parking lot in Whitefish on a routine patrol when he noticed A.S.B. approaching the store. As he watched A.S.B., Officer Blalack believed he saw A.S.B. throw something at Officer Blalack's vehicle, prompting him to approach A.S.B., roll down his window, and inquire what was going on. A.S.B. became aggressive and upset, and accused Officer Blalack of "starting something with him." When Officer Blalack asked A.S.B. what he had thrown at his car, A.S.B. denied throwing anything, and threatened Officer Blalack that he and the Whitefish Police Department "had better watch out ... because this was going to come to an end and it was going to happen soon." Officer Blalack interpreted A.S.B.'s statement as a threat; A.S.B. later testified he was merely expressing his intent to file an official complaint or lawsuit against the police department for harassing him. Officer Blalack called for a backup unit as A.S.B. began walking away, and continued to watch A.S.B. through his rearview mirror. A.S.B. then yelled several profanities in Officer Blalack's direction in the presence of a crowd that included children, after which the backup officer arrived and arrested A.S.B. for disorderly conduct.

¶ 9 The incident that led to A.S.B.'s arrest was not the first interaction between Officer Blalack and A.S.B. According to Officer Blalack, A.S.B. used aggressive and intimidating body language, eye contact, and words in every contact the two men had with each other, which included more than ten investigations by Officer Blalack into reports of suspicious activity by A.S.B. On at least three such occasions Officer Blalack, knowing that A.S.B. had a knife on his person, was compelled to draw his weapon when A.S.B. refused to comply with a request that he keep his hands in plain sight. Moreover, A.S.B. had on one occasion disrupted Officer Blalack as he responded to a report of a burglary, forcing Officer Blalack to take his attention away from the task at hand and creating a dangerous situation for Officer Blalack, other police officers, and A.S.B. At that time, A.S.B. told Officer Blalack that he believed the Whitefish Police Department was conspiring against him. Officer Blalack was continuously concerned that A.S.B.'s aggressive and intimidating conduct would result in either an officer or A.S.B. getting hurt.

¶ 10 After A.S.B.'s arrest for disorderly conduct, A.S.B. allegedly told Officer Blalack that a medical device was implanted in his body when he was young to control his life, and that he was resisting that group's effort to control him as a result. A.S.B. also allegedly stated that he believed most law enforcement officers were involved in the conspiracy to control his life. A.S.B. denied making those statements.

¶ 11 The day after A.S.B.'s arrest, the Whitefish Police Department requested that Brooks Baer, a certified mental health professional, assess A.S.B.'s mental health. Mr. Baer conducted an assessment at the hospital emergency room, and though A.S.B. was extremely guarded, he admitted to Mr. Baer that he believed the Whitefish Police Department was in a conspiracy against him. A.S.B. also indicated to Mr. Baer that he believed his head was "half the size it used to be and it's shrinking all the time." Mr. Baer concluded that A.S.B. misconstrued cues from women and law enforcement officers, resulting in a strong risk for affective violence. Mr. Baer believed A.S.B. suffered from paranoid schizophrenia, and testified at A.S.B.'s adjudicatory hearing that the threat of violence from A.S.B. was imminent. Mr. Baer further testified: "In this case I see clear elements of risk. I think the likelihood that they're going to combine to a catastrophic outcome ... is 100 percent."

¶ 12 At the conclusion of Mr. Baer's assessment, the Flathead County Attorney's Office filed a Petition for Involuntary Commitment, in response to which the District Court entered an order appointing the necessary persons and scheduling, among other things, an adjudicatory hearing. A.S.B. was admitted to the Pathways Treatment Center in Kalispell pursuant to that order. Prior to his adjudicatory hearing, A.S.B. filed a Request for Examination by Professional Person of Respondent's Choosing. The District Court granted A.S.B.'s request, and the adjudicatory hearing was held on September 26, 2006.

¶ 13 Sandra Cox is the full-time staff psychiatrist at Pathways who conducted the initial evaluation of A.S.B. and acted as his treating physician thereafter, meeting with him twelve times in approximately three weeks. At the adjudicatory hearing, Dr. Cox testified that she diagnosed A.S.B. with chronic paranoid schizophrenia, and recommended that the District Court commit A.S.B. to the state hospital. Dr. Cox explained the basis for her recommendation as follows:

[T]hroughout [A.S.B.'s] thought content, there is a pervasive paranoid ideation throughout all of his content. Hehe makes loose associations between events and circumstances and people which may not be related in any way, shape or form to one another, which lead him to feel paranoid, feel as if others are plotting against him and out to get him.

And he presents himself as someone who does not avoid fights, who does not avoid conflict. In fact [he] steps up to the plate in a situation of conflict to present himself even in a violent way. He calls himself a rough guy and believes that he is being picked on by multiple systems and people.

While Dr. Cox could not conclude that A.S.B. posed an "imminent" threat of harm to others — Dr. Cox acknowledged that nobody could make such a prediction — she did state that A.S.B. posed a significant threat to himself and others because he was likely to respond aggressively in situations when he felt sufficiently threatened. Dr. Cox predicted that A.S.B.'s refusal to accept treatment for his chronic paranoid schizophrenia would cause it to worsen and deteriorate considerably. Dr. Cox testified that Pathways was not an appropriate treatment center for A.S.B. because of his refusal to take medication and accept treatment.

¶ 14 Edward Trontel is the licensed psychologist that conducted the independent examination of A.S.B. at his request. At A.S.B.'s adjudicatory hearing, Dr. Trontel agreed that A.S.B. suffered from paranoid schizophrenia, but said he could not affirmatively state that A.S.B. posed an "imminent" threat of harm to himself or others. The basis for Dr. Trontel's conclusion was that A.S.B.'s "suspiciousness, his sense that he was the object of both scrutiny and mistreatment was generalized rather than focused on a specific individual and specific place and time." Dr. Trontel explained: "[T]o be really clear for the Court, my hesitancy was about the issue of imminence. I think in comparison to other people with his illness, he poses a higher risk than average. So I am not arguing against a risk, only my ability to predict an imminent risk." Dr. Trontel did not hesitate, though, in agreeing with the prosecutor that A.S.B. posed a threat of danger to himself and others, and that the threat would continue into the foreseeable future. Dr. Trontel simply doubted his ability to predict the specific circumstances in which A.S.B. would find himself in the future. As he stated on redirect examination, "I've been dancing vigorously sideways because my — I am not asserting that it is not an imminent threat, I am simply stating I can't say. I don't have enough information to make that statement."

¶ 15...

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