Montana State Hospital. Credit Keith Schubert
Disability Rights Montana is asking a court to clarify which patients involuntarily committed to the Montana State Hospital are allowed to vote and whether the hospital is technically a penal institution.
The questions are part of a case in which a convicted felon at the state hospital has sought to vote in the upcoming election.
This week, Attorney General Austin Knudsen issued a legal opinion saying a person convicted of a felony who suffers from a mental illness and is placed in the State Hospital is ineligible to vote while serving their sentence at the hospital.
His office also noted that beyond the newly issued opinion, a 2020 memorandum of understanding between the Secretary of State’s Office and the Department of Corrections clarified that offenders serving time in a treatment program are deemed to be incarcerated in a penal institution — and, therefore, ineligible to vote.
The filing from Knudsen’s office said that allowing a convicted felon with mental illness to vote would lead to “absurd results” if the initial order was upheld.
“The law is clear, convicted felons lose their right to vote while they are serving their sentence. Serving time at Warm Springs while being treated for mental illness does not restore that right,” Knudsen said in a statement.
The lawsuit, though, said some people involuntarily committed to the State Hospital who don’t have felonies may still have the right to vote, and the plaintiffs want a court to clarify that is the case.
The plaintiffs filed an amended complaint last Friday.
Complaint argues plaintiff should be allowed to vote despite felony conviction
In an emergency order Oct. 7, a judge in Deer Lodge County District Court said the felon and plaintiff in the case, Joshua Cypher, should be allowed to vote. But the defendant in the case, Deer Lodge County Clerk and Recorder Toni Hofland, did not get a chance to respond to the request for the temporary restraining order before it was granted.
Knudsen’s office also responded to Cypher’s complaint on behalf of Hofland.
The law says that convicted felons cannot vote in Montana while “serving a sentence in a penal institution.” Further, it says that “a person adjudicated to be of an unsound mind” cannot vote until they have “been restored to capacity as provided by law.” When registering to vote, Montanans must swear under the penalty of perjury that neither factor applies to them.
But Cypher and Disability Rights Montana’s complaints argue that the State Hospital is not a penal institution and it is sometimes unclear when patients committed to the hospital involuntarily were “adjudicated to be of an unsound mind.”
They say that not allowing involuntarily committed people to vote, even if they are felons, deprives them of the ability to help choose representatives who have a say on the operations and funding of the State Hospital, which lost its federal certification and has been heavily scrutinized in recent years.
“Voting is one of the only powers patients at the State Hospital have to influence the most private decisions in their lives, including who they associate with, where they live, and what happens to their bodies,” Tal Goldin, the lead attorney for the plaintiffs, said in a statement.
Disability Rights Montana helps patients at the hospital register to vote, among other things. The suit says Cypher, who was convicted in April on a felony aggravated assault conviction and sentenced to an involuntary commitment at the State Hospital because of his mental illness, had tried to register to vote at his home address in Anaconda, but Hofland rejected the registration.
According to the group’s complaint, Hofland did so by noting that Cypher is a “DOC Commit.” But after the group filed the initial complaint and subsequently had the restraining order granted – it only applies to Cypher – he was able to register and send his absentee ballot into the clerk’s office.
The complaint contended, however, that under Montana law, his vote can be challenged by any registered voter, and his registration could be canceled in the future without permanent relief from the court. It said others involuntarily committed to the hospital are also in jeopardy whether convicted felons or not.
Friday’s complaint at the time said after the order was issued that allowed Cypher to vote, a Lake County attorney said the county clerk would not register a different felon being treated for mental illness but had requested an attorney general opinion on the matter.
“The county attorney opined that individual should not be registered because, as a patient at MSH criminally committed, the county asserts, the patient ‘is in a penal institution,’” the filing says.
The complaint says that is “precisely” the question the organization wants answered by the courts. The plaintiffs also request a finding that the Montana State Hospital is not a “penal institution.”
“People with disabilities who meet all legal requirements to vote deserve the same opportunity to have their voices heard as any other Montana citizen,” Goldin said in a statement.
Hofland, represented by AG’s Office, says granting injunction would lead to ‘absurd results’
But Knudsen’s opinion issued Tuesday, and his office’s subsequent court filing in the Deer Lodge County case, seek to show that there are already legal interpretations in place that would prohibit Cypher and other similarly situated felon patients at the hospital from voting.
The court filing says the judge who issued the restraining order without hearing from Hofland first made the ruling in error and relied on legal inaccuracies.
The filing says Cypher is considered “alt-secure” by the Department of Corrections, which they say is a “correctional status” for patients placed at Warm Springs as an alternative to jail or prison. Hofland’s attorneys argue that a person serving a felony sentence there is still under state supervision based on the 2020 memorandum of understanding.
The filing also contends that Cypher was adjudicated to be “of unsound mind” and was thus sent to the State Hospital.
The response to the complaint says allowing a felon to vote simply because they are not physically in a prison would lead to “absurd results,” and included as an example a prisoner who escapes on Election Day.
A screenshot of the conclusion of the Attorney General’s Office’s brief on behalf of Toni Hofland includes a theoretical to sum up its argument. (Screenshot via brief)
“This person would not be ‘in a penal institution,’ but it would be absurd to conclude they are therefore eligible to vote,” the filing says.
It also says that while state law does not expressly define what “unsound mind” means, it has been interpreted elsewhere as a lack of ability to distinguish between right and wrong, among other things.
“The common thread here is that a person of unsound mind is mentally unwell to the extent that they cannot manage themselves or their affairs, nor can they comprehend the consequences of their actions,” the filing says. “This is exactly why Plaintiff is confined at MSH.”
The attorneys point out that Cypher received a 10-year sentence for his conviction and had sprayed bear spray into his victim’s face for “no apparent reason.”
“Ultimately, it should be clear that Plaintiff is of ‘unsound mind’ such that he is not entitled to register to vote,” the filing says.
The attorneys for Hofland say the restraining order will be used to coerce similar concessions in other counties as well.
“Granting Plaintiff’s request will create an administrative nightmare just weeks from the election,” the filing says. “…This is election disruption on a large scale and will undermine the confidence of the public in our election because suddenly those that are constitutionally forbidden to vote now are permitted to do so.”
Knudsen’s separate opinion on whether convicted felons serving their sentence at Warm Springs are allowed to vote was made in response to a request for an opinion from the Lake County attorney, the opinion shows. Much of the same analysis was used in Hofland’s response to the suit.
“These provisions were enacted to ensure that the mentally ill do not enjoy fewer rights as a result of their condition, but the idea that a felon who is serving in a mental hospital rather than prison is eligible to vote would mean that person is receiving more rights,” Knudsen wrote.
A hearing on the matter is set for next Monday, Oct. 28, in Deer Lodge District Court.