N. B., Matter of

• Decision Date: 24 December 1980
• Docket Number: No. 80-147,80-147
• Citation: 620 P.2d 1228,37 St.Rep. 2031,190 Mont. 319
• Parties: In the Matter of N. B.
• Court: Montana Supreme Court

Page 1228

620 P.2d 1228

190 Mont. 319

In the Matter of N. B.

No. 80-147.

Supreme Court of Montana.

Submitted Nov. 21, 1980.

Decided Dec. 24, 1980.

James D. Johnson, Montana Legal Services, argued, Warm Springs, for appellant.

Mike Greely, Atty. Gen., Helena, Sheri Sprigg argued, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for respondent.

SHEEHY, Justice.

N.B. appeals from an order of the Thirteenth Judicial District Court, Yellowstone County. After a nonjury hearing, the District Court made a finding that N.B. was seriously mentally ill. He was involuntarily committed to Warm Springs State Hospital for three months of evaluation and treatment. This appeal raises the following issues for our consideration:

1. Did the District Court commit error in its findings by using "reasonable medical certainty" as the legal standard of persuasion necessary to find N.B. seriously mentally ill?

2. Does the clause "except that mental disorders shall be evidenced to a reasonable medical certainty" found in section 53-21-126(2), MCA, lower the legal standard of persuasion required in civil commitment proceedings below the "clear and convincing" standard required by Fourteenth Amendment due process?

3. Can this Court consider these issues where N.B.'s commitment may be moot, and where the issues were not raised in the District Court?

We hold that these issues are properly before us. Although we believe the statutory legal standard for proving serious mental illness is constitutional, we reverse and dismiss the order of the District Court. The District Court erred by using the standard for judging the competence of a medical witness' testimony in place of the required legal standard of persuasion for determining whether N.B. was seriously mentally ill. The meager evidentiary record developed in this case does not support a remand of this case to the District Court. N.B. is not shown in the record before us to be seriously mentally ill by the required legal standard of persuasion of clear and convincing proof.

On December 5, 1979, Scott Schreiber, a counselor-therapist of the South Central Montana Regional Mental Health Center, requested the Yellowstone County Attorney to file a petition alleging N.B. to be seriously mentally ill and dangerous. Schreiber requested that N.B. be committed to a state mental hospital. A formal petition for N.B.'s commitment was filed that same day. From information included in the petition, the District Court determined that probable cause existed to believe that N.B. was seriously mentally ill. The court ordered that N.B. undergo a psychological examination administered by a professional of the South Central Montana Regional Mental Health Center. Apparently to satisfy this order, Schreiber visited with N.B. for 30 minutes and sent a letter to the county attorney's office indicating that N.B. was "unmanageable on an outpatient basis" and "in need of long-term treatment." In this letter, Schreiber recommended that N.B. be committed to the Warm Springs State Hospital for a period of three months.

An in-chambers hearing was held on December 11, 1979, regarding the petition for commitment. N.B. was present at the hearing and was represented by counsel. The only witness to testify in favor of N.B.'s commitment was Schreiber. Schreiber indicated that he was qualified to testify as a "professional person" in the treatment of the mentally ill. Schreiber testified that he believed N.B. was a danger to himself and to others and that N.B. was seriously mentally ill. In cross-examination, Schreiber admitted that he did not have a degree in psychology and that his commitment recommendation was based in part on events not personally known by him. Schreiber further admitted that N.B.'s behavior improved while N.B. was taking tranquilizing medication. In his own defense, N.B. testified that his erratic behavior can be controlled by medication. He testified that his recent erratic behavior occurred after he "ran out" of medication.

In the absence of the presiding judge from chambers, another district judge signed a statement of findings and order for N.B.'s involuntary commitment, Finding of fact no. 7 made by the court read as follows: "The Respondent (N.B.) is to a reasonable medical certainty seriously mentally ill as defined in Section 53-21-102(14) Montana Code Annotated, 1979." (Emphasis added.) N.B. was then involuntarily committed to the Warm Springs Mental Health facility for three months. By the time this appeal was submitted to this Court, N.B. had been released from the facility.

Two cardinal rules of this Court provide that we will not render an opinion concerning an issue that is moot and that a party may not raise an issue for the first time on appeal to this Court. Counsel for N.B. fears we may classify the issues he raises as moot because of N.B.'s release from the Warm Springs facility. Counsel for the State, as respondent in this appeal, argues that the issues raised by N.B. should be dismissed because N.B. failed to raise them during the District Court hearing. Although the State acknowledges that the District Court erred in its finding of fact no. 7, it contends that N.B. should first return to the District Court and move that court to correct its findings and enter a new order.

The important constitutional questions presented here are not rendered moot by N.B.'s release from the Warm Springs mental health facility. During oral argument we were...