No Waiver Without a Record: Montana Supreme Court Reaffirms and Clarifies § 53‑21‑119(1), MCA, Requirements for Waiver in Involuntary Commitment Proceedings

Introduction

In Matter of P.G.J., 2025 MT 240, the Supreme Court of Montana reversed a district court order committing a 70-year-old respondent, P.G.J., to the Montana State Hospital for up to 90 days. The State’s petition alleged Bipolar I disorder with manic and psychotic features and recounted numerous law enforcement contacts and criminal charges in the months preceding the petition. At the initial hearing, the district court read the respondent her rights and, relying on limited statements by defense counsel, accepted what it deemed a waiver of rights and entered a same-day commitment order.

The central issue on appeal was not whether the State ultimately could meet the substantive criteria for commitment, but whether the record contained sufficient evidence that P.G.J. intentionally and knowingly waived her procedural rights under Montana’s civil commitment statute, § 53‑21‑119(1), MCA. The Court held it did not, reversed the commitment, and underscored the judiciary’s non-delegable duty to develop an adequate record before accepting any waiver in the involuntary commitment context.

Summary of the Opinion

The Court reversed the district court’s order committing P.G.J. because the record lacked any affirmative evidentiary basis to conclude she knowingly and intentionally waived her procedural rights. Merely reading rights aloud and noting that the respondent did not “want a trial” or wished to be “stabilized” is insufficient. The Court reaffirmed that before accepting a waiver in an involuntary commitment proceeding, the district court must:

Inquire on the record into the respondent’s capacity to knowingly and intentionally waive rights; and
Make an affirmative record, based on evidence and representations from the respondent and/or counsel (and a friend, if applicable), that the waiver is knowing and intentional.

The Court emphasized that the preferred practice is a personal waiver by the respondent, but that a waiver may be accepted based on counsel’s representations if—and only if—those representations satisfy the minimum requirements articulated in prior cases. The eight-minute hearing, conducted without directed questions to P.G.J. about waiver and without a developed record, fell far short of those requirements. The Court also clarified that a sufficiency-of-the-record challenge to a waiver may be raised for the first time on appeal in the circumstances presented.

Analysis

Precedents Cited and Their Influence

In re P.A.C., 2013 MT 84, 369 Mont. 407, 298 P.3d 1166. The Court established that there must be “some record” that the respondent is capable of making a knowing and intelligent waiver. It is the shared responsibility of the court and parties to ensure the record supports a valid waiver. This case provided the foundation for the on-the-record inquiry requirement applied to P.G.J.
In re A.M., 2014 MT 221, 376 Mont. 226, 332 P.3d 263. The Court articulated minimum requirements for accepting a waiver, particularly where counsel speaks for the respondent: (1) counsel discussed waiver with the client; (2) the client desires to waive; and (3) counsel is satisfied the client understands rights and the nature of the proceeding. The Court also held the district court may not accept a stipulation to commitment without an affirmative on-the-record determination that the respondent understands and knowingly waives rights. This framework controlled the outcome in P.G.J.
In re N.A., 2014 MT 257, 376 Mont. 379, 334 P.3d 915. Reaffirmed A.M. and reversed a commitment for lack of an adequate waiver record. The Court used N.A. to stress consistent enforcement of the waiver-record requirement.
In re R.W.K., 2013 MT 54, 369 Mont. 193, 297 P.3d 318. Demonstrated that a waiver can be valid based solely on counsel’s representations—but only when counsel clearly states that the client received the petition, understands rights and the nature of proceedings, discussed allegations with counsel (and the friend), and wishes to waive and stipulate. The Court contrasted R.W.K.’s robust record with the sparse record in P.G.J.
In re S.D., 2018 MT 176, 392 Mont. 116, 422 P.3d 122. Cited in A.M. for the premise that an affirmative determination on the record is a prerequisite to accepting a stipulation to commitment—a point the Court reproduces here.
In re M.T.H., 2024 MT 26, 415 Mont. 158, 543 P.3d 581. Confirmed the standard of review: clearly erroneous for fact findings, correctness for legal conclusions. This frames the Court’s review of the record in P.G.J.
In re B.A.F., 2021 MT 257, 405 Mont. 525, 496 P.3d 554; In re M.K.S., 2015 MT 146, 379 Mont. 293, 350 P.3d 27. Emphasized strict application of involuntary commitment statutes due to fundamental liberty interests and due process protections.
State v. Criswell, 2013 MT 177, 370 Mont. 511, 305 P.3d 760. Cited in a footnote to support that, given the statutory requirement of a valid record for waiver, a claim that the record is insufficient may in these circumstances be raised for the first time on appeal. This application signals that waiver-record defects are of such fundamental character that they are not forfeited by silence below.

Legal Reasoning

Montana’s involuntary commitment regime, Title 53, chapter 21, MCA, is designed to safeguard liberty by structuring procedures and rights that must be strictly observed. Section 53‑21‑119(1), MCA, governs waiver of rights and contemplates two routes:

The respondent personally waives rights—permissible only if she is capable of making an intentional and knowing decision.
If the respondent is not capable, counsel and the “friend of respondent” (if appointed) may waive, acting together, but only if a record is made of the reasons for the waiver.

The statute explicitly provides that the right to counsel and the right to treatment cannot be waived. The Court’s precedents require that, before a court accepts a waiver along either route, the judge must affirmatively determine on the record that the respondent understands her procedural rights and is knowingly and intentionally giving them up. Where counsel’s representations are the basis for waiver, A.M. specifies the minimum record that must be made: (1) counsel discussed waiver with the client; (2) the client desires waiver; and (3) counsel is satisfied the client understands her rights and the nature of the proceedings.

Applying these rules, the Court concluded the record in P.G.J.’s case was insufficient. The district court read rights aloud but directed no waiver-specific questions to the respondent and relied on counsel’s limited statements that: (a) he met his client that morning; (b) they would not contest probable cause; (c) she did not want a trial and wanted stabilization; and (d) she understood the petition’s allegations. There was no representation that counsel discussed the waiver of rights with P.G.J., that she desired to waive, or that counsel was satisfied she understood her rights and the nature of the proceeding. No “friend of respondent” was appointed or involved, and no reasons for waiver were recorded. In short, the court “rushed” to a final order in an eight-minute hearing without the thorough and diligent inquiry the law requires. That failure necessitated reversal.

Impact

This decision carries concrete implications across Montana’s civil commitment practice:

Bench obligations elevated and clarified. Judges must personally ensure the record demonstrates a knowing and intentional waiver—preferably via the respondent’s own answers. Where relying on counsel’s statements, judges must elicit the A.M. minimum representations and, if the respondent lacks capacity, must ensure that counsel and a friend act together with reasons memorialized.
“Stipulate and sign” is not enough. A stipulated order or generalized desire to “avoid trial” or “get stabilized” cannot substitute for an on-the-record capacity and waiver inquiry. Commitment orders based on thin records risk reversal.
Friend-of-respondent practice. Courts should not overlook appointment of a friend when capacity is in question. If the second clause of § 53‑21‑119(1) is invoked, the friend’s participation and the reasons for waiver must be expressly recorded.
Defense counsel’s record-making duties. Counsel should create a clear record addressing the three A.M. elements and, ideally, elicit the client’s personal waiver colloquy. Absent such a record, counsel’s silence will not insulate the order from reversal.
Prosecutorial prudence. The State should support the court in building the record—requesting a waiver colloquy and, when appropriate, the appointment of a friend—to avoid remands and protect judgments.
Appellate posture. The Court signaled that insufficient waiver records may be challenged for the first time on appeal under circumstances like those here, incentivizing meticulous compliance at the trial level.
Systemic timing and process. The admonition against “rushing” hearings suggests courts should allot time for a deliberate, right-by-right colloquy and, if necessary, brief continuances to appoint a friend or obtain clarifying professional input about capacity.

Complex Concepts Simplified

Waiver of rights. A waiver is giving up a right—such as the right to a hearing, to present evidence, or to be examined by a professional person—after understanding what the right is and the consequences of not using it. In this context, the waiver must be intentional and knowing, and some rights (counsel and treatment) cannot be waived.
“Knowing and intentional” capacity. The person must be mentally able to understand their rights and the nature of the proceeding and must choose to give up those rights on purpose—not by accident, confusion, or misunderstanding.
Friend of respondent. A statutorily contemplated support person who, with counsel, may waive rights on behalf of a respondent who lacks capacity, but only if the court makes a record explaining the reasons for the waiver.
Affirmative on-the-record determination. The judge must create a clear record—through questions and answers or detailed representations—that shows the respondent understands the rights and is choosing to waive them. Silence or assumption is insufficient.
Stipulation vs. waiver. Agreeing to certain facts or outcomes (a stipulation) is not the same as a valid waiver. The court cannot accept a stipulation to commitment unless it first ensures, on the record, that any related rights are knowingly and intentionally waived.
Initial/probable cause vs. final disposition. An initial hearing often addresses probable cause and advises rights; a final disposition (like a 90-day commitment) cannot be entered absent either (a) a full, contested hearing meeting statutory safeguards or (b) a valid, on-the-record waiver of those safeguards.

Practical Guidance and Bench Checklist

To operationalize Matter of P.G.J., trial courts can adopt a short, structured colloquy before accepting any waiver:

Confirm the respondent has reviewed the petition and understands the allegations and possible outcomes.
Explain, in plain terms, each procedural right under § 53‑21‑115, MCA (e.g., presence at hearing, counsel, presenting evidence, examination by a professional), and confirm understanding after each right.
Ask whether the respondent wishes to give up each right and proceed by stipulation or abbreviated process.
Ask open-ended questions that probe understanding of consequences (e.g., “What does it mean to you to give up your right to a hearing?”).
Ask counsel to place on the record that: (1) counsel discussed waiver with the client; (2) the client desires waiver; and (3) counsel believes the client understands rights and the nature of the proceeding.
If capacity is uncertain, appoint a friend of respondent and record the reasons supporting any waiver by counsel and friend acting together.
Make explicit findings that the waiver is knowing, intentional, and voluntary.

Conclusion

Matter of P.G.J. reinforces a bedrock principle in Montana’s civil commitment jurisprudence: no waiver without a record. The decision does not announce a novel standard so much as it consolidates and clarifies prior holdings—In re P.A.C., In re A.M., In re N.A., and In re R.W.K.—and applies them rigorously to a record that lacked the minimum required showings. The Court again mandates that district courts create an affirmative, on-the-record basis for any rights waiver, preferably through the respondent’s own statements, and at least through counsel’s detailed representations satisfying the A.M. criteria. Stipulations, time pressures, or generalized preferences are no substitute.

The opinion’s practical effect is immediate: judges, prosecutors, and defense counsel must slow down, make the necessary inquiries, and document capacity and intent with care. Where capacity is in doubt, the statutory friend-of-respondent mechanism must be invoked and explained on the record. By reversing the commitment order, the Court signals that fundamental due process cannot be compressed into an eight-minute proceeding, and that the integrity of involuntary commitment cases depends on strict adherence to statutory safeguards.