S. Hanway v. K. Fouts

11/02/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0503
OP 21-0503
FILED
SHYLAH HANWAY,
NOV 0 2 2021
Petitioners, Bowen Greenwood
Clerk of Supreme Court
State.) ryf Mnntana
v.
ORDER
KYLE FOUTS, Montana State Hospital
Administrator, and ADAM MEIER,
Montana Department of Public Health
and Human Services Director,
Respondents.
By verified petition filed October 7, 2021, Shylah Hanway (Hanway) petitions this
Court for issuance of a peremptory writ of mandamus compelling the respective Directors
of the Montana Department of Public Health and Human Services and the Montana State
Hospital (collectively MDPHHS) to immediately comply, within 48 hours of issuance of
the writ, with certain orders of the Montana Eighth Judicial District Court, Cascade County,
issued in Cause Nos. BDC-20-165 (October 20, 2020), CDC-21-052 (August 19, 2021),
and DDC-21-492 (August 31, 2021) pursuant to § 46-14-221(2)(a), MCA, to accept and
place her in an appropriate MDPHHS "mental health facility" or MDPHHS "residential
facility" "for so long as" her previously adjudicated "unfitness [to proceed] endures or until
disposition . . . is made pursuant to" § 46-14-221(2)(b) and (3), MCA (required
development by MDPHHS "facility" of "an individualized treatment plan to assist the
defendant" in "[re]gain[ing] fitness to proceed," 90-day committing court "review" of
"fitness to proceed" thereunder, and court determination as to whether defendant "still unfit
to proceed" under § 46-14-221(3)(a)-(c), MCA), "whichever occurs first." See § 46-14-
221(2)(a), MCA. Hanway's verified petition and MDPHHS' s October 22, 2021 response
manifest the following summary timeline and undisputed facts at issue in the various
criminal proceedings against Hanway below:
BDC-20-165 — State v. Hanway (Indecent Exposure)
• 2020-03-12: Eighteen-year-old Hanway arrested for Indecent Exposure to Minor (F),
in violation of § 45-5-504(3), MCA, on allegation that she exposed her
breasts to her seven-year-old sister. Released on own-recognizance on
conditions.
• 2020-03-12: Hanway formally charged by Information with Indecent Exposure to
Minor (F).
• 2020-10-16: Hanway diagnosed on defense-commissioned examination by Dr. Donna
Zook, Ph.D., with "disorganized schizophrenia," a mental disorder as
defined by §§ 46-14-101(2)(a) and 53-21-102(9)(a), MCA, rendering her
unfit "to proceed and stand triar as referenced in §§ 46-14-101(1)(a)(i)
and -103, MCA.
• 2020-10-20: Pursuant to § 46-14-221(2)(a), MCA, Hanway adjudicated "unfit to
proceed" as referenced in §§ 46-14-101(1)(a)(i) and -103, MCA, on
uncontested defense motion based on 2020-10-16 Zook evaluation.
Court suspends criminal proceeding and commits Hanway "to the
custody of' MDPHHS "to be placed in an appropriate [MDPEITHS] mental
health facility . . . or residential facility . . . for so long as the unfitness
endures or until disposition . . . is made pursuant to [§ 46-14-221(2)(b)
and (3), MCA], whichever occurs "first." Court orders sheriff to
immediately transport Hanway to MSH "without delar upon
"communicating with" MSH. Court maintains her on an
own-recognizance release pending transport to MSH. The court sets the
90-day review hearing required by § 46-14-221(3)(a), MCA, for
December 28, 2020.
Sheriff does not transport, however, upon MSH advisory of no bed-space
at MDPIIHS Forensic Mental Health Facility (FMHF) at Galen,
Montana. MDPHHS instead places Hanway on the FMIFIF waiting list.
• 2020-12-28: At previously scheduled 90-day fitness review hearing required by
§ 46-14-221(3)(a), MCA, court advised that MDPHFIS has yet to accept
custody of Hanway per 2020-10-20 commitment order and that she has
since been arrested and is incarcerated on a municipal court matter. No
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evidence or documentation presented by State/CA or defense counsel as
to MDPHHS status in re compliance with 2020-10-20 commitment order.
Continuation of the required 90-day hearing subsequently continued
multiple times until reset for January 25, 2021.
• 2021-01-20: The 90-day MDPHHS fitness status report and review hearing deadline
specified by § 46-14-221(3)(a), MCA, expires without MDPHHS
acceptance of custody of Hanway per 2020-10-20 court order.
• 2021701-25: Required 90-day fitness review hearing resumes. Court again advised
that MDPHHS has yet to accept custody of Hanaway per 2020-10-20
commitment order. No evidence or documentation presented by
State/CA or defense counsel as to MDPHHS status in re compliance with
2020-10-20 commitment order. Hanway still incarcerated under order in
parallel-pending municipal and district court proceedings.
• 2021-02-08: Defense counsel files motion to dismiss suspended criminal case due to
State (MDPHHS/CA) and court non-compliance with § 46-14-221(2)(a)
and (3), MCA, MDPHHS fitness restoration, status report, and judicial
fitness review and determination requirements.
• 2021-02-11: Upon notice from MDPHHS of available FM_HF bed-space, the sheriff
transports Hanway to MSH which accepts custody and admits her for
fitness restoration in accordance with 2020-10-20 commitment order
(BDC-20-165) and similar 2021-01-29 commitment order
(CDC-21-052).
• 2021-03-09: Over State/CA objection, the court dismisses suspended criminal case
with prejudice based on its prior unfitness adjudication and due to State
(MDPHHS/CA) delay and non-compliance with its 2020-10-20
commitment order and resulting § 46-14-221(2)(a) and (3), MCA,
requirements for MDPHHS fitness restoration, status report, and the
consequential lack of any evidentiary basis for judicial review and
determination of Hanway's fitness status. See § 46-14-221(3)(a)-(b),
MCA (requiring dismissal of suspended criminal proceeding upon
judicial determination on 90-day review that defendant remains unfit to
proceed due to mental disorder and that "it does not appear that [he or
she] will become fit within the reasonably foreseeable future").
The court expressly orders that "the State must initiate involuntary
commitment proceedings." See § 46-14-221(3)(b), MCA (requiring
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State/CA to petition for involuntary civil commitment under Title 53,
chapter 21, MCA, upon dismissal of the criminal case).1 State does not
comply.
• 2021-04-20: In reference to the since-dismissed BDC-20-165 and subsequently filed
CDC-21-052, MDPHHS issues a written evaluation report pursuant to
§ 46-14-221(2)(b) and (3)(a), MCA, confirming that Hanway suffers
from "schizoaffective disorder." Inter alia, MDPHEIS reports that, due
to her "severe mental illness," Hanway did not have the "capacity to
conform her behavior to the requirements of the law" at the time of the
offenses charged in BDC-20-165 and CDC-21-052,2 but "appear[s] to be
capable of rational discussions with" defense counsel and was thus now
"currently fit to proceed."' No further proceedings in BDC-20-165 due
to prior dismissal.
CDC-21-052 — State v. Hanway (Assault on Peace Officer)
• 2021-01-09: While incarcerated on municipal court matter and after allegedly refusing
to eat for several days, Hanway allegedly punches detention officer in the
face through jail cell food port when officer was delivering food and
encouraging her to eat.
• 2021-01-20: Hanway formally charged by Information with Assault on a Peace Officer
(F) in violation of § 45-5-210(1)(a), MCA.
• 2021-01-22: Defense counsel files unopposed defense motion pursuant to
§ 46-14-221(2)(a), MCA, for adjudication of Hanway as "unfit to
proceed" based on prior 2020-10-16 Zook unfitness determination in
BDC-20-165.
• 2021-01-29: Court adjudicates Hanway "unfit to proceed" pursuant to
§ 46-14-221(2)(a), MCA, for the second time based on the 2020-10-16
Zook evaluation. Court suspends the criminal proceeding and commits
Hanway "to the custody of" MDPHHS "to be placed at an appropriate
Hanway and MDPHHS assert that the State/CA has disregarded and not complied with the court's
order. There is no contrary indication in the limited record presented here.
2 See §§ 46-14-206(1)(d), (e), -213, -214(1), and -301, MCA.
3 See §§ 46-14-103, -206(1)(e), -221(3)(a), and -222, MCA.
4
[MDPHHS] mental health facility . . . or residential facility . . . for so long
as the unfitness endures or until disposition . . . is made pursuant to
[§ 46-14-221(2)(b) and (3), MCA], whichever occurs "first."4 Court
orders sheriff to immediately transport Hanway to MSH "without delay"
upon "communicating with" MSH and sets the 90-day review hearing
required by § 46-14-221(3)(a), MCA, for April 22, 2021.
Sheriff does not transport, however, upon MSH advisory of no bed-space
at MDPHHS FMHF at Galen. MDPHHS instead places Hanway on the
FMB"' waiting list.
• 2021-02-11: Upon notice from MDPHHS of available FMHF bed-space, the sheriff
transports Hanway to MSH which accepts her for fitness restoration in
accordance with the 2021-01-29 commitment order (CDC-21-052) and
similar 2020-10-20 commitment order (BDC-20-165).
• 2021-04-20: In reference to CDC-21-052 and BDC-20-165 (since dismissed on
2021-03-09), MDPHHS issues written evaluation report pursuant to
§ 46-14-221(2)(b) and (3)(a), MCA, confirming that Hanway suffers
from "schizoaffective disorder." Inter alia, IVIDPHHS reports that, due to
her "severe mental illness," Hanway did not have "the capacity to
conform her behavior to the requirements of the law" at the time of the
offenses charged in BDC-20-165 and CDC-21-052,5 but "appear[s] to be
capable of rational discussions with" defense counsel and was thus now
"currently fit to proceed."6
• 2021-04-22: Court conducts 90-day review hearing required by § 46-14-221(3), MCA.
Based on the 2021-04-20 IVIDPHHS report and supplemental hearing
testimony of MSH Dr. Virginia Hill, court adjudicates Hanway now fit to
In addition to ordering MDPHHS to "develop an individualized treatment plan" to assist in
regaining fitness to proceed as required by § 46-14-221(2)(b), MCA, the court ordered MDPHHS
to further examine Hanway and report on her "mental condition" and ability to form the requisite
criminal mental state at the time of the subject offense pursuant to §§ 46-14-202(1), (2), and -206,
MCA.
5 See §§ 46-14-206(1)(d), (e), -213, -214(1), and -301, MCA.
6 See §§ 46-14-103, -206(1)(c), -221(3)(a), and -222, MCA.
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proceed and orders resumption of the previously suspended criminal
proceeding in CDC-21-052.7
• 2021-04-23: Court reduces Hanway's bond on defense motion.
• 2021-04-27: MDPHHS discharges Hanway and sheriff returns her to incarceration at
Cascade County detention center. Hanway immediately bailed-out by her
mother.
• 2021-05-18: Court resets trial for June 14, 2021.
• 2021-06-01: Defense counsel files unopposed motion to continue trial for additional
60 days in furtherance of plea negotiations with the State. Trial
rescheduled.
• 2021-07-13: In wake of Hanway's June 29, 2021 arrest on new offenses in what would
later be designated DDC-21-492, defense counsel files motion for
redetermination of Hanway's fitness to proceed pursuant to § 46-14-202,
MCA.
• 2021-08-14: Incident to the July 13, 2021 defense motion for redetermination of
Hanway's fitness to proceed, Donna Zook, Ph.D., attempts but is unable
to conduct defense-arranged mental health evaluation due to Hanway's
refusal to cooperate. Based on "extrapolation" from Hanway's prior
condition and circumstances, her discontinuation of prescribed mental
health medication, and recent behavior, Dr. Zook again diagnoses her
with "disorganized schizophrenia" and concludes that she is again unfit
to proceed.
• 2021-08-19: Court adjudicates Hanway "unfit to proceed" pursuant to
§ 46-14-22 1(2)(a), MCA, for the third time based on the 2020-08-14
Zook evaluation. Court suspends the criminal proceeding and commits
Hanway "to the custody of' MDPHHS "to be placed in an appropriate
[MDPHHS] mental health facility . . . or residential facility . . . for so long
as the unfitness endures or until disposition . . . is made pursuant to
[§ 46-14-221(2)(b) and (3), MCA], whichever occurs "first." Court
orders sheriff to immediately transport her to MSH on coordination with
MSH.
7 See § 46-14-222, MCA. •
6
Sheriff does not transport, however, upon MSH advisory of no bed-space
at MDPHHS FMHF at Galen. MDPHHS again places Hanway on the
FMEIF waiting list.
• 2021-10: State/CA files motion, served on MDPHEIS by mail on October 5, for
issuance of contempt/show cause order compelling MDPHHS to either
immediately accept custody of Hanway pursuant to 2021-08-19 order of
commitment or, alternatively, appear and show cause why not. Court
subsequently issues the requested contempt/show cause order.
• 2021-10-07: Defense counsel files above-captioned petition for writ of mandamus
compelling MDPHHS to immediately accept custody of Hanway in
accordance with the prior district court orders of cornmitment in
BDC-20-165 (October 20, 2020), CDC-21-052 (August 19, 2021), and
DDC-21-492 (August 31, 2021).
• 2021-10-08: Defense counsel files motion to quash its prior contempt/show cause
order in CDC-21-052 pending disposition of supreme court mandamus
petition.
• 2021-10-14: At contempt/show cause hearing, district court finds MDPIIHS in
contempt of court based on non-compliance with 2021-08-19
commitment order.
DDC-21-492 — State v. lianway (Kidnapping & Obstructing a Peace Officer)
• 2021-06-29: Hanway arrested while out on bail in CDC-21-052 for Kidnapping in
violation of § 45-5-302, MCA, for taking an unrelated four-year-old girl
into her home, closing the door, and undressing and bathing her on the
belief that the girl was her daughter. Also charged with Obstructing a
Peace Officer in violation of § 45-7-302, MCA, for giving a false name
to the investigating officer.
• 2021-06-30: Upon her initial appearance, court sua sponte commits Hanway to
MDPHHS custody for re-evaluation of her fitness to proceed pursuant to
§§ 46-14-202 and -206, MCA, presumably in regard to CDC-21-052 and
the new offense later formally charged in DDC-21-492.8
8 The disposition of this evaluation commitment order is unclear in light of the subsequent
proceedings in CDC-21-052 and DDC-21-492.
7
• 2021-07-15: Hanway formally charged by Information with Kidnapping and
Obstructing a Peace Officer.
• 2021-08-19: Defense counsel files uncontested motion for adjudication of Hanway as
unfit to proceed and commitment to the custody of MDPHHS pursuant to
§ 46-14-221(1)-(2)(a), MCA.
• 2021-08-31: Court adjudicates Hanway "unfit to proceed" pursuant to
§ 46-14-221(2)(a), MCA, for the fourth time based on the 2021-08-14
Zook evaluation and prior similar evaluations in BDC-20-165. Court
suspends the criminal proceeding and commits Hanway "to the custody
of" MDPHHS "to be placed in an appropriate [MDPHHS] mental health
facility . . . or residential facility . . . for so long as the unfitness endures
or until disposition . . . is made pursuant to [§ 46-14-221(2)(b) and (3),
MCA], whichever occurs "first."9 Court orders sheriff to immediately
transport Hanway to MSH "without delay" upon "communicating with"
MSH and sets required 90-day review hearing for November 3, 2021.
Sheriff does not transport, however, upon MSH advisory of no bed-space
at MDPHHS FMIFIF at Galen. MDPHHS again places Hanway on the
FIVIHF waiting list where she remains to date.
• 2021-10-07: Defense counsel files above-captioned petition for writ of mandamus
compelling MDPHHS to immediately accept custody of Hanway in
accordance with the prior district court orders of commitment in
BDC-20-165 (October 20, 2020), CDC-21-052 (August 19, 2021), and
DDC-21-492 (August 31, 2021).
• 2021-10-08: Defense counsel files motion to quash its prior contempt/show cause
order in CDC-21-052 pending disposition of supreme court mandamus
petition.
• 2021-10-14: At CDC-21-052 contempt/show cause hearing, district court finds
MDPHHS in contempt of court based on non-compliance with CDC-21-
052 2021-08-19 commitment order.
9 In addition to ordering MDPHHS to "develop an individualized treatment plan" to assist in
regaining fitness to proceed as required by § 46-14-221(2)(b), MCA, the court ordered MDPHHS
to further examine Hanway and report on her "mental condition" and ability to form the requisite
criminal mental state at the time of the subject offense pursuant to §§ 46-14-202(1), (2), and -206,
MCA.
8
Inter alia, MDPHHS's October 22 summary response also sets forth the following
unverified factual assertions:
[MSH] is cornprised of several different components, which operate under
different licenses (and legal requirements) and provide different types of
services pursuant to different protocols. For purposes relevant to the district
court's finding of contempt and Hanway's [mandamus] [p]etition, the Main
Hospital at Warm Springs (MSH or Main Hospital) is an acute psychiatric
care facility that provides intensive inpatient psychiatric services, including
for patients who are involuntarily committed to the hospital according to the
involuntary civil cornmitment provisions of . . . Title 53, Chapter 21[,]
[MCA]. FMHF is a forensic hospital that serves patients who are in the
custody of penal authorities, primarily pursuant to the procedures established
under . . . Title 46, Chapter 14[,] [MCA].
Currently, FMTIF has 54 beds . . . for inpatient forensic evaluation services
for the State['s] . 56 counties. Forty-eight (48) of those beds are currently
designated for male defendants. Six (6) are designated for female
defendants. Since its inception in 2016, the FMHF has been operating at
capacity. FMHF has maintained forensic evaluation waiting lists since 2010,
with an increase in the number of defendants on the waiting lists since the
onset of the COVID-19 pandemic. COVID-19 quarantine protocols have
further limited the [MDPHHS]'s ability to rotate patients civilly committed
to MSH and defendants ordered to FMHF for criminal cornmitments into bed
space. The limitations on bed space has, therefore, become an increasingly
critical factor in the delay of admissions to the FMHF.
The reasons for limited bed space include:
1. Defendants present with complex psychiatric and medical illnesses,
related to homelessness, drug abuse, and limited services in the
community and take longer to stabilize.
2. Defendants refuse to take psychotropic medications resulting in the
need for Sell Hearings, which can take months to schedule.
3. Pre-trial detainees being maintained at MSH to ensure medication
adherence, even if found fit to proceed, to prevent cessation of
medications and decompensation.
9
4. Overwhelmed court dockets create admission delays.
5. Disinclination by county and defense attorneys to pursue civil
commitment hearings.
6. COVID-19 protocols, which limit admissions during 14-day
quarantines and limit admissions to no more than three individuals at
any one time, have exacerbated delays in admissions.
More simply stated, the primary factors contributing to delayed admissions
are finite bed space and the conflict between the time required to evaluate
and appropriately restore defendants' fitness, if possible, and the continuous
and ever-increasing number of court-ordered admissions.
[MDPHHS] is currently engaged in a concentrated and deliberate effort to
address the factors within its control that lead to delayed FMHF admissions,
to increase its capacity for admissions, including reconfiguring physical
space to create more available beds. This is, however, a temporary,
emergency remedy, designed at this time to alleviate the larger backlog of
admissions affecting female defendants. It cannot be sustained long-term
and has the potential to exacerbate wait times for admissions of male
defendants. The fact remains that current circumstances make it impossible
for the [MDPHHS] to comply with the district court's order to transport and
admit Hanway immediately.[101
Mandamus is an extraordinary remedy available in the discretion of the court only
in rare cases upon an affirmative showing that: (1) the petitioner "is entitled to the
performance of a clear legal duty" by the agency, officer, tribunal, or other person or entity
at issue; (2) the duty involves the performance of a purely ministerial act rather than a
discretionary act; and (3) no plain, speedy, and adequate remedy is available to compel
performance of the duty in the ordinary course of law. Section 27-26-102, MCA; City of
10 On October 28, 2021, MDPHHS filed a supplemental notice in this matter, and similar notices
in the underlying CDC-21-052 and DDC-21-492 matters, that, in accordance with the underlying
district court commitment orders in those matters, it accepted custody of Hanway on October 27,
2021, for placement in its FMHF unit for fitness restoration care and assessment pursuant to
§ 46-14-221(2)-(3), MCA.
10
Deer Lodge ex reL City of Deer Lodge Ord 130 & 136 v. Chilcott, 2012 MT 165, ¶ 14,
365 Mont. 497, 285 P.3d 418 (internal citations omitted); Smith v. Cty. of Missoula, 1999
MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834 (internal citations omitted); State ex reL
Thomas v. Dist. Ct., 224 Mont. 441, 442-43, 731 P.2d 324, 324-25 (1986) (internal
quotations omitted); Stewart v. Montana, 135 Mont. 323, 326, 340 P.2d 151, 153 (1959);
State ex reL Danaher v. Miller, 52 Mont. 562, 568, 160 P. 513, 514-15 (1916) (internal
citation omitted); State ex reL Beach v. Dist. Ct, 29 Mont. 265, 269-70, 74 P. 498, 499-500
(1903) (internal citation omitted). A duty is purely ministerial only if "the law prescribes
and defines [it] to be performed with such precision and certainty as to leave nothing to the
exercise of discretion or judgment." State ex reL Sch. Dist. No. 29 v. Cooney, 102 Mont.
521, 529, 59 P.2d 48, 53 (1936) (citations omitted). Accord State ex reL Anderson v. Gile,
119 Mont. 182, 187, 172 P.2d 583, 586 (1946). "The party applying for the writ" must
show sufficient facts to establish or trigger a "clear legal right to the relief sought" and the
"ability on the part of [the subject] to perform that duty." State ex reL Blenkner v. Stillwater
Cty., 102 Mont. 130, 133-34, 56 P.2d 1085, 1086 (1936). Mandamus does not lie "to
compel the performance of an act which would be . . . beyond the power or duty of [the]
respondent to perform." Beach, 29 Mont. at 269, 74 P. at 500.
Here, as a threshold matter, MDPHHS has a clear legal duty under § 46-14-
221(2)(a), MCA, to immediately accept custody of a criminal defendant for fitness
restoration assessment and care upon a written "unfitness to proceed" determination and
commitment order issued by a district court pursuant to § 46-14-221(2)(a), MCA. While
the nature of the "individualized treatment plan," related care, and ultimate fitness review
assessment thereafter required by § 46-14-221(2)(b) and (3)(a), MCA, involve highly
discretionary matters of professional medical opinion and care, the threshold duty to
immediately accept custody of a defendant upon a district court commitment order
pursuant to § 46-14-221(2)(a), MCA, is a purely ministerial duty.
However, as manifest in the current parallel-pendency of contempt proceedings
against MDPHHS in CDC-21-052 below, a plain, speedy, and adequate remedy is available
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in the ordinary course of law to compel performance of MDPEIHS's threshold ministerial
duty under § 46-14-221(2)(a), MCA. See §§ 3-1-402(2), -501(1)(e), (3), -512, -518, -520,
and -523, MCA. Moreover, while the assertions of fact in MDPHHS's summary response
are not verified, see §§ 25-4-203 and 27-26-302, MCA (verified pleadings and requirement
for "answer, under oath," in mandamus proceedings), MDPHHS raises a question of fact
as to its ability to immediately comply with the district court commitment orders at issue
under Hanway's petition. Under these circumstances, we find that discretionary issuance
of a writ of mandamus does not lie and is not warranted.
IT IS THEREFORE ORDERED that Hanway's Petition for Writ of Mandarnus,
filed October 7, 2021, is DENIED and DISMISSED.
The Clerk of this Court is directed to provide immediate notice of this Order to
Hanway's counsel, counsel of record and the presiding judges (Honorable Elizabeth A.
Best, Honorable John Kutzman, and Honorable John Parker) in each of the subject matters
of State v. Hanway, Cause Nos. BDC-20-165, CDC-21-052, and DDC-21-492, Montana
Eighth Judicial District Court, Cascade County.
DATED this —day of November, 2021.
Chief Justice
/0 2-1•1 .
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