Right to counsel

Key_development Question_mark

Legislation, Civil Commitment

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 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). 


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 § 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)


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 § 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).

Appointment of Counsel: categorical Qualified: no