Right to counsel

Generally

 

There is a right to representation by the public defender in various types of civil commitment proceedings for minors and adults.

 

Commitment due to developmental disabilities

 

In proceedings for the involuntary “commitment, recommitment, or emergency commitment” of a developmentally disabled individual to a residential facility, “the court shall” direct the state public defender’s office to appoint counsel for the individual pursuant to the Montana Public Defender Act ("MPDA").  See Mont. Code Ann. § 53-20-112(3).  See also § 47-1-104(4)(b)(v) (implementing provision of MPDA).  Upon request, the court shall also direct the state public defender’s office to appoint counsel for the parents or guardian, if determined to be indigent pursuant to MPDA eligibility rules.  See § 53-20-112(3).  See also § 47-1-104(4)(a)(vii) (implementing provision of MPDA).  See generally § 47-1-111 (MPDA eligibility rules). 

 

Mental health-related commitments

 

The MPDA gives the court discretion to appoint a public defender, pursuant to § 53-21-116, for an indigent person subject to proceedings for involuntary commitment for mental health treatment.  See Mont. Code Ann. § 47-1-104(4)(a)(viii).  However, § 53-21-116 in turn provides that “If the person is indigent or if in the court’s discretion assignment of counsel is in the best interest of justice, the judge shall order the office of state public defender, provided for in [section 1], to immediately assign counsel to represent the person at either the hearing or the trial, or both” (emphasis added). “The right to counsel may not be waived."  § 53-21-119(1).  

 

Under the chapter, "mental disorder" is defined as "any organic, mental, or emotional impairment that has substantial adverse effects on an individual's cognitive or volitional functions."  The term explicitly does not include substance dependency, drug or alcohol intoxication, intellectual disability, or epilepsy. § 53-21-102(9).

 

The right to counsel also includes the right to effective assistance of counsel. See Matter of J.S., 401 P.3d 197 (Mont. 2017) ("[T]he right to the effective assistance of counsel in civil commitment proceedings is grounded, not only in Montana's express statutes providing for the right to counsel, but also in the Due Process Clause of the United States Constitution and Montana's Constitution...").

 

Substance use dependency-related commitments

 

In proceedings to commit or recommit a person for involuntary alcoholism treatment, “[t]he court shall inform the person . . . of the person’s right to . . . have assigned counsel pursuant to the [MPDA], if the person wants the assistance of counsel and is unable to obtain private counsel.”  See Mont. Code Ann. § 53-24-302(9).  See also § 47-1-104(4)(a)(ix) (permitting appointment for an indigent person “as provided in” § 53-24-302).  Further, “[i]f the court believes that the person needs the assistance of counsel, the court shall . . . assign counsel . . . regardless of the person’s wishes.”  § 53-24-302(9).

 

As to minors

 

Mental health-related commitments

 

Voluntary admission: Release request

 

A minor 16 years of age or older may consent on their own behalf to admission for mental health treatment. Mont. Code Ann. § 53-21-112(2).  Such a minor has the right to request that they be released within 5 days as provided for in Section 53-21-111(3). Id. at (4).  

 

A minor's parent or guardian may also consent on behalf of the minor to the minor's admission. Id. at (1).  Similarly, a minor admitted through the consent of their parent or guardian has the right to be released within 5 days of their parent or guardian making such a request. Id. at (4).  The statute does not mention a procedure through which a minor may object to an admission made pursuant to their parent or guardian's consent (which may trigger a right to counsel).  However, the section does goes on to provide generally:

Unless there has been a periodic review and a voluntary readmission consented to by the parent or guardian in the case of a minor patient or consented to by the minor alone in the case of a minor patient who is at least 16 years of age, voluntary admission terminates at the expiration of 1 year.  At the minor's request or at any time that the minor is faced with potential legal proceedings, the court shall order the office of state public defender, provided for in 2-15-1029, to assign counsel for the minor.

Involuntary commitment

The provisions discussed above appear to be equally applicable to minors. Nothing in the mental health code indicates that its involuntary commitment provisions are restricted to adults, as the definition of "Respondent" is not age restricted:  Section 53-21-102(18) states, " 'Respondent' means a person alleged in a petition filed pursuant to this part to be suffering from a mental disorder and requiring commitment."  Accordingly, the involuntary mental health commitment proceedings discussed above, and the associated right to counsel, presumably apply to minors as well.

Substance dependency- and developmental disabilities-related commitments

 

Similarly, the sections covering the involuntary commitment and recommitment of those suffering from substance dependency, as well as the commitment provisions relevant to those with developmental disabilities, and the associated rights to counsel, seem to apply to minors.  For example, the section on substance dependency commitments specifically states that notice should be served on a parent or guardian if the respondent is a minor. See Mont. Code Ann. § 53-24-302(2), (7).  And the section covering procedural rights in commitments related to developmental disability states that "the parents or guardian of a respondent has the right to: ... be represented by counsel in any hearing". Mont. Code Ann. § 53-20-112(2).