Matter of Jacobs , 38 N.C. App. 573 ( 1978 )

248 S.E.2d 448 (1978) 38 N.C. App. 573

In the Matter of Larry James JACOBS.

No. 779DC1061.

Court of Appeals of North Carolina.

November 7, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Christopher S. Crosby, Raleigh, for the State.

Special Counsel Susan Freya Olive, Butner, for respondent-appellant.

MORRIS, Judge.

Respondent does not challenge the sufficiency of evidence. Nevertheless, he assigns as error the district court's failure to make findings of fact to support its commitment order. G.S. 122-58.7(i) provides in unambiguous terms: "The court shall record the facts which support its findings." This Court has held on numerous occasions that the district court must record the facts necessary to support its findings. See e. g., In Re Koyi, 34 N.C.App. 320, 238 S.E.2d 153 (1977); In the Matter of Crouch, 28 N.C.App. 354, 221 S.E.2d 74 (1976); In Re Neatherly, 28 N.C.App. 659, 222 S.E.2d 486 (1976). We note that the commitment order in the case sub judice is essentially identical to that order found to be insufficient in In Re Koyi, supra. Merely placing an "X" in the boxes on the commitment order form does not comply with the statute.

Although the district court's failure to make findings of fact is sufficient error to require reversal, we note additionally that the trial court continued the respondent's hearing, over objection, for seven days. The State failed at the originally scheduled hearing to offer any evidence or to come forward with even a copy of the magistrate's order of commitment or the petition for involuntary commitment. The result was that respondent was denied his right to a hearing before the district court within ten days of confinement. G.S. 122-58.7(a) (1977 Cum.Supp.) mandates the following procedure for the district court hearing:

"A hearing shall be held in district court within 10 days of the day the respondent is taken into custody. Upon motion of the respondent's counsel, sufficiently in advance to avoid movement of the respondent, continuance of not more than five days each may be granted." (Emphasis added.)

The language of the statute is again plain and unambiguous. The granting of a continuance for five days is within the discretion of the trial judge only on the motion of respondent. If the legislature had intended to allow the trial court to exercise its traditional discretion in granting continuances, the second sentence in the quotation from the statute, supra, would not have been necessary. The statute indicates a conscious legislative decision to place the burden on the State to come forward with evidence to justify the commitment within 10 days. Such a duty should not prove burdensome since within 24 hours a qualified physician at an appropriate mental health facility must have examined the respondent and concluded respondent was mentally ill or inebriate and imminently dangerous to himself or others. See G.S. 122-58.6.

This Court noted in a case applying the forerunner of G.S. Chapter 122, Article 5A (held unconstitutional since that decision) that taking a person without the intervention of any court proceeding is a drastic procedure. Samons v. Meymandi, 9 N.C. App. 490, 177 S.E.2d 209 (1970), cert. den., 277 N.C. 458, 178 S.E.2d 225 (1971) (allowing commitment merely upon acknowledged statement of physician). The Court, speaking through Campbell, Judge, indicated its commitment to applying the statute strictly: "There being a statute which provides for a drastic remedy, it is encumbent upon all that use it to do so with care and exactness, even though the user may think it ``impractical'." 9 N.C.App. at 497, 177 S.E.2d at 213. "When the language of a statute is clear and unambiguous, it must be given effect and its clear meaning may not be evaded by . . . a court under the guise of construction." State ex rel. Utilities Commission v. Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977). Although the lack of flexibility provided in the statute may impose hardship on the State, the plain language of the statute, until amended, must control.

We note that this is not a situation wherein the application of G.S. 1A-1, Rule 6(a) would extend the ten-day period. See e. g., In the Matter of Eugene Underwood, 247 S.E.2d 778 (N.C.App., 1978) (where tenth day fell on a weekend).

This situation should also be distinguished from the rehearing proceedings under G.S. 122-58.11. See In the Matter of Jackie Boyles, 247 S.E.2d 785 (N.C.App., 1978). In that situation the respondent had already been committed pursuant to a district court proceeding and had undergone extended treatment. The time period in such cases, though important, is less critical than a hearing on initial commitment.

For failure to make findings to support its order for commitment, the district court must be

Reversed.

MITCHELL and ERWIN, JJ., concur.