S.M. v. And, DA 15-0762.

• Decision Date: 03 October 2017
• Docket Number: DA 15-0762.
• Citation: 403 P.3d 324,389 Mont. 28,2017 MT 244
• Parties: In the MATTER OF: S.M., Respondent and Appellant.
• Court: Montana Supreme Court

389 Mont. 28

403 P.3d 324

2017 MT 244

In the MATTER OF: S.M., Respondent and Appellant.

DA 15-0762.

Supreme Court of Montana.

Submitted on Briefs: July 19, 2017

Decided: October 3, 2017

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

Justice Beth Baker delivered the Opinion of the Court.

¶ 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.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 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 Sixth and Fourteenth Amendments to the United States Constitution.

STANDARDS OF REVIEW

¶ 9 Constitutional issues are questions of law; our review of such questions is plenary. In re Mental Health of T.M. , 2004 MT 221, ¶ 7, 322 Mont. 394, 96 P.3d 1147.

¶ 10 Legislative enactments are presumed to be constitutional. Williams v. Bd. of Cnty. Comm'rs of Missoula Cnty. , 2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88. The party challenging a statute has the burden of proving beyond a reasonable doubt that it is unconstitutional. Williams , ¶ 23. To prevail on a facial challenge, the party making the challenge must show that "no set of circumstances exists" under which the statute would be valid or that the statute lacks any "plainly legitimate sweep." Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008) (citations and internal quotations omitted); see also Mont. Cannabis Indus. Ass'n v. State , 2016 MT 44, ¶ 14, 382 Mont. 256, 368 P.3d 1131.

DISCUSSION

¶ 11 Whether § 53-21-119(1), MCA, prohibiting a person from waiving the right to counsel in a civil commitment proceeding, violates the Sixth and Fourteenth Amendments to the United States Constitution.

¶ 12 Montana's civil commitment statutes provide respondents to involuntary commitment petitions with numerous procedural rights. They include the right to notice in advance of any hearing, § 53-21-115(1), MCA ; to be present, to offer evidence, and to present witnesses, § 53-21-115(2), MCA ; to know in advance the names and addresses of opposing witnesses and to cross-examine them, § 53-21-115(3) - (4), MCA ; to remain silent, § 53-21-115(6), MCA ; to be examined by the professional of the respondent's choice, §§ 53-21-115(9), -118, MCA ; to be dressed in the respondent's own clothes, § 53-21-115(10), MCA ; and to either refuse to take or to voluntarily take medication before any hearing, § 53-21-115(11) - (12), MCA.

Section 53-21-119(1), MCA, allows a respondent to "mak[e] an intentional and knowing decision" to waive these rights. Along with the above listed rights, the statute guarantees the right to counsel in no fewer than three provisions. See § 53-21-115(5), MCA (guaranteeing "the right to be represented by counsel"); § 53-21-116, MCA (guaranteeing the right to counsel at any hearing or trial and providing for appointed counsel); § 53-21-117, MCA (guaranteeing the right to secure an attorney of the respondent's choice). Unlike its treatment of other rights, § 53-21-119(1), MCA, prohibits a respondent from waiving the right to counsel.

¶ 13 S.M. alleges that the language in § 53-21-119(1), MCA, that "[t]he right to counsel may not be waived" violates his right to represent himself under the Sixth Amendment and his right to substantive due process under the Fourteenth Amendment.¹

¶ 14 S.M. argues first that the right to act as counsel for oneself rests on the Sixth Amendment. In Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that the right to present one's own defense in a criminal prosecution, though not explicitly provided for in the text, was "necessarily implied by the structure of the [Sixth] Amendment." S.M. argues that the Sixth Amendment's right to self-representation applies equally to involuntary civil commitment proceedings.

¶ 15 The State counters, and we agree, that the Sixth Amendment of the United States Constitution does not apply to civil commitment proceedings. By its very language the Sixth Amendment is limited to "criminal prosecutions." U.S. Const. amend. VI ; see Martinez v. Court of Appeal of Cal. , 528 U.S. 152, 159-60, 120 S.Ct. 684, 690, 145 L.Ed.2d 597 (2000) ("The Sixth Amendment identifies the basic rights that the accused shall enjoy in ‘all criminal prosecutions.’ They are presented strictly as rights that are available in preparation for trial and at the trial itself."); Middendorf v. Henry , 425 U.S. 25, 96 S.Ct. 1281, 1289, 47 L.Ed.2d 556 (1976) ("[T]hat a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a ‘criminal prosecution’ for purposes of the Sixth Amendment."). We have explained that "although affording an individual with certain ‘criminal’ due process rights, the involuntary commitment process does not invoke" the Sixth Amendment. In re Mental Health of K.G.F. , 2001 MT 140, ¶ 39, 306 Mont. 1, 29 P.3d 485. Although we overruled In re K.G.F. on other grounds in In re J.S. , 2017 MT 214, ¶ 19, 388 Mont. 397, 401 P.3d 197, we reaffirmed the principle "that the right to effective assistance of counsel in civil commitment...