Interest of J.B. , 2021 ND 90 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 20, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 90In the Interest of J.B.
Kathleen K. Murray, State’s Attorney, Petitioner and Appellee
v.
J.B., Respondent and Appellant
No. 20200238
Appeal from the District Court of Wells County, Southeast Judicial District,
the Honorable James D. Hovey, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Kathleen K. Murray, State’s Attorney, Fessenden, N.D., petitioner and
appellee.
Tyler J. Morrow, Grand Forks, N.D., for respondent and appellant.
Interest of J.B.
No. 20200238
Tufte, Justice.
[¶1] J.B. appeals a district court order denying his petition for treatment in
community placement. On appeal, J.B. argues the district court erred in
determining that N.D.C.C. § 25-03.3-24 does not violate the separation of
powers. We affirm the district court order.
I
[¶2] J.B. was committed to the North Dakota State Hospital as a sexually
dangerous individual in September 2005. In 2020, J.B. requested a discharge
hearing under N.D.C.C. § 25-03.3-18. At the hearing, the State called Dr.
Deirdre D’Orazio, who testified that J.B. remained a sexually dangerous
individual and was not ready for community placement. J.B. called Dr. Stacey
Benson, who also testified that J.B. remained a sexually dangerous individual
but that he was ready for community placement. Following the hearing, J.B.
petitioned the district court for community placement under N.D.C.C. § 25-
03.3-24. The court found that the State had established clear and convincing
evidence that J.B. remained a sexually dangerous individual under N.D.C.C. §
25-03.3-01(8). The court also denied J.B.’s petition for community placement,
concluding that the statute is constitutional and that because the executive
director did not petition for community placement, it lacked subject-matter
jurisdiction to consider J.B.’s petition.
II
[¶3] Whether a statute is unconstitutional is a question of law, which is fully
reviewable on appeal. In re P.F., 2008 ND 37, ¶ 7, 744 N.W.2d 724 (citing
Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167).
“Ultimately, our duty is to ‘reconcile statutes with the constitution when that
can be done without doing violence to the language of either.’” Sorum v. State,
2020 ND 175, ¶ 20, 947 N.W.2d 382 (quoting State ex rel. Rausch v. Amerada
Petroleum Corp., 78 N.D. 247, 256, 49 N.W.2d 14, 20 (1951)). “[T]he supreme
court shall not declare a legislative enactment unconstitutional unless at least
four of the members of the court so decide.” N.D. Const. art. VI, § 4.
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[¶4] J.B. argues the district court erred when it held N.D.C.C. § 25-03.3-24
does not violate the separation of powers doctrine. He claims N.D.C.C. § 25-
03.3-24 unconstitutionally imposes executive branch oversight on the judicial
branch because it allows the court to order community placement only if the
executive director of the Department of Human Services files a petition. As a
remedy, J.B. proposes that we strike the words “executive director” in N.D.C.C.
§ 25-03.3-24 and replace them with the words “either party.” This remedy is
unavailable because “[t]his Court will not add words or additional meaning to
a statute.” First Union Nat’l Bank v. RPB 2, LLC, 2004 ND 29, ¶ 17, 674
N.W.2d 1. When a court concludes a statute violates the constitution, the
remedy the judicial branch may grant is to declare that the “unconstitutional
legislation is void and is to be treated as if it never were enacted.” Hoff v. Berg,
1999 ND 115, ¶ 19, 595 N.W.2d 285.
[¶5] The State argues that In re G.R.H., 2006 ND 56, 711 N.W.2d 587, and In
re P.F. have already determined that the statute is constitutional. The statute
provides that:
Following commitment of a sexually dangerous individual, the
executive director may conduct a risk management assessment of
the committed individual for the purpose of determining whether
the individual may be treated safely in the community on an
outpatient basis. The executive director may place a committed
individual in the community for treatment on an outpatient basis
only pursuant to a court order. The executive director may petition
the court at any time for community placement. . . .
N.D.C.C. § 25-03.3-24(1).
[¶6] “[T]he determination of the least restrictive treatment available is
initially made by the executive director and this initial determination does not
violate due process.” P.F., 2008 ND 37, ¶ 24 (citing G.R.H., 2006 ND 56, ¶¶ 21-
27). This Court has also held that the procedures in N.D.C.C. ch. 25-03.3 satisfy
procedural due process by providing pre- and post-commitment safeguards,
including the safeguards provided for determining community placement.
G.R.H., 2006 ND 56, ¶ 27. The requirement that the executive director petition
for community placement satisfies procedural due process.
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[¶7] J.B.’s argument is similar to P.F.’s argument that section 25-03.3-17
unconstitutionally violates the separation of powers doctrine by legislatively
granting judicial authority to the executive director. In P.F., this Court stated:
[W]hen N.D.C.C. § 25-03.3-17(1) and (5) are read together to give
effect to each provision and the legislature’s intent, the executive
director may petition for discharge if the executive director decides
that discharge is appropriate because the individual is now safe to
be at large. In addition the committed individual is entitled to
petition for discharge annually. N.D.C.C. § 25-03.3-18. Thus, there
is an opportunity for discharge independent of the determination
of the executive director. In either case, the court ultimately
decides whether the committed individual is to be discharged, and
the executive director may not discharge the individual until
directed to by a court order.
P.F., 2008 ND 37, ¶ 12. This Court concluded that section 25-03.3-17 does not
violate the separation of powers doctrine. Id. at ¶ 25. We acknowledge that
section 25-03.3-17 differs from the section that J.B. challenges in that it
provides a yearly opportunity for the committed to petition for release. But
here the court ultimately decides whether the committed individual is ready to
be placed in the community for treatment on an outpatient basis and under
what conditions. The condition that the court may order community placement
only when the executive director files a petition requesting it does not violate
the separation of powers doctrine.
III
[¶8] We affirm the district court order.
[¶9] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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