Khmelev v. Fouts ( 2021 )

09/15/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0450
OP 21-0450
ILYA KHMELEV, FILED
Petitioner, SEP 15 2021
Bowen Greenwood
Clerk of Supreme Court
State of Montana
v.
KYLE FOUTS, Montana State Hospital ORDER
Administrator, and ADAM MEIER, Director,
Health and Human Services,
Respondents.
On September 10, 2021, Petitioner Ilya Khmelev filed a Petition for Writ of
Mandamus. Petitioner seeks a writ of mandamus directing the Department of Public Health
and Human Services (the Department) to comply with the mandates of the Kalispell
Municipal Court's August 31, 2021 Order Finding Defendant Unfit to Proceed and
Committing Defendant to the State Hospital for Restoration or, alternatively, to require the
Department to immediately adrnit Petitioner to some other medically suitable facility for the
purpose of restoring Petitioner's fitness to proceed in Kalispell Municipal Court Cause
Number KMC TK-21-1322. Having reviewed the Petition, this Court deems it appropriate
to obtain responses in accordance with M. R. App. P. 14(7).
From the documents provided by the Petitioner, it appears Khmelev was originally
detained at the Flathead County Detention Center on February 5, 2021, in Cause Number
TK-21-566 before the Flathead County Justice Court for violation of a protection order. The
Justice Court ordered the Montana State Hospital (MSH) to evaluate Khrnelev's fitness to
proceed under § 46-14-206, MCA. MSH did not admit or evaluate Khmelev, and the
Flathead Justice Court dismissed the charges on June 25, 2021, because of the delay.
Khmelev was rearrested three days later on June 28, 2021, for criminal trespass to property
in Cause Number KMC TK-21-1322 before the Kalispell Municipal Court. Khmelev's
defense attorney secured an evaluation from Dr. Michael Scolatti and rnoved the Municipal
Court to find Khmelev unfit and commit him to MSH pursuant to § 46-14-211(1) and (2),
MCA. On August 31, 2021, the Municipal Court found Khmelev unfit and ordered him to
be committed to MSH within forty-eight hours pursuant to § 46-14-221(2)(a), MCA.
Khinelev remains in the Flathead County Detention Center.
This Court is gravely concerned about the possibility a severely mentally ill individual
has been held almost continuously in the Flathead County Detention Center since
February 5, 2021, and allowed to decompensate and languish without proper care. It is not
clear why statutorily required and court-ordered interventions under §§ 53-21-1201 and
46 12-202, MCA, failed in this and Khmelev's immediately prior case, or why the Flathead
County Attorney has not sought and secured civil commitment of Khmelev to the MSH
pursuant to the provisions of Title 53, chapter 21, MCA. The cycle of dismissal and rearrest
appears set to repeat itself, as the Department has yet to admit Khmelev under the August 31,
2021 commitment order pursuant to § 46-14-221(2)(a), MCA. We therefore order an
expedited response frorn the Department on why a writ of mandate should not issue and
whether the Department requires facilitation from the Kalispell City Attorney, the Flathead
County Attorney, and/or the Municipal Court to transport Khmelev to MSH.
Secondarily, we order a response from the Flathead County Attorney, the Kalispell
City Prosecutor, and the Flathead County Detention Center about what they have done to
coordinate and accomplish transport of the defendant to MSH to accomplish the commitment
that has been ordered.
Therefore,
IT IS ORDERED that Montana State Hospital Administrator Kyle Fouts and Director
of the Department of Public Health and Human Services Adam Meier are granted until
September 22, 2021, to prepare, file, and serve a response(s) on behalf of the Department to
the petition for writ of mandamus.
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IT IS FURTHER ORDRED the Kalispell City Attorney, the Flathead County
Attorney, and the Flathead County Detention Center are granted until Septernber 22, 2021, to
prepare, filed, and serve a response(s).
The Clerk is directed to provide a copy of the Order to counsel for Petitioner, all
counsel of record in Kalispell Municipal Court, Flathead County, Cause No. KMC
TK-21-1322, Kyle Fouts, Adam Meier, the Kalispell City Attorney's Office, the Flathead
County Attorney's Office, the Montana Attorney General's Office, the adrninistrator of the
Flathead County Detention Center, as well as the Honorable Lori Adams.
_14/-14m
DATED this I 5 —day of Septernber, 2021.
Chief Justice
L,441"/"P•4
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