M.B. v. Konenkamp , 1994 S.D. LEXIS 163 ( 1994 )

HENDERSON, Retired Justice

(concurring specially).

Under the auspices of SDCL 26-7A-107, M.B. was ordered to undergo alcohol treatment. A civil commitment deprives an individual (such as respondent) of liberty no less than a commitment to jail or prison, be the motive punitive or corrective. Neither this statute nor any other part of the juvenile code requires any notice, hearing or procedure whatsoever prior to the juvenile court’s issuance of such a protective order. Thus, the juvenile code is in a state of disrepair.

Although Judge Konenkamp attempted to bridge this statutory gap, M.B. was not advised of her rights and potential liabilities at her first appearance as required by SDCL 26-7A-30. She had no idea that she could face detention and loss of her liberty. Thus, at the early stages of these proceedings against her son (which evolved into proceedings against her also), M.B. was denied a reasonable opportunity to be heard in a meaningful manner. Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971); Daugaard v. Baltic Coop Bldg. Supply Ass’n, 349 N.W.2d 419, 424 (S.D.1984). Despite eventually receiving counsel, evidence obtained during the early stages, when she had no counsel, damaged her throughout the proceedings. This Court cannot countenance such a constitutional infirmity. Involuntary commitment is an extreme remedy to be used in carefully circumscribed circumstances. For a discussion on the two types of involuntary commitment, i.e., (a) protective custody or (b) detoxification and commitment and the ramifications thereof, see Matter of BAS., 134 Wis.2d 291, 397 N.W.2d 114 (App.1986).

We are not engaged in a merit-discussion of the trial court’s good intentions. Obviously, the motives were good. Rather, our goal is an academic pursuit to determine if the involuntary commitment herein meets the test of law. To such end, we should be cognizant that involuntary commitment is a creature of statute and it must be confined to its own statutory birth. Thus, it is axiomatic that a failure to follow specific procedures will result in a dismissal of the proceedings. See also In re Thorne, 307 Mich. 659, 12 N.W.2d 445 (1943).

Here, the record (it weighs about five pounds) does not demonstrate that respondent M.B. was advised prior to her son’s admission of delinquency that custodial treatment for her was in the offing upon the disposition of his offense. Nor would such an outcome fall within her reasonable expectations. Cf. State v. Wolff, 438 N.W.2d 199 (S.D.1989). There must be procedural due process. It does not exist before us. See U.S. ConstAmend. V and XIV; S.D.Const. art. VI, § 2. As I perceive the status of the record, the trial court proceeded under SDCL 26-7A-107, same being in violation of due process, because it fails to set out procedures whereunder protective orders are to be entered. Said statute fails to provide a statutory mechanism for (1) an adversarial hearing; (2) confrontation of witnesses; (3) burden of proof; ^* (4) notice of accusation, or any other procedural safeguards which are incorporated pursuant to the statutes on commitments. See SDCL eh. 34-20A.

As Judge Oliver Wendell Holmes once wrote, “[I]t is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.” Johnson v. United States, 163 F. 30, 32 (1st Cir.1908).

My destination on this legal trip is justice, justice in the case. I simply travel a different road than the majority opinion and the other special writing, which also seek justice as they visualize it. It is the constitutional road. This Court should not — cannot—create an analog for the statutory procedures for alcohol commitment within the juvenile court jurisdiction by providing a notice and hearing and furnishing counsel to the respondent in the waning moments of the legal proceeding. Unfortunately for M.B., the course was charted.

Perhaps the State Legislature, within the framework of its constituted committees studying significant decisions emanating from this august Court, will grasp the inferential whisper of a Retired Justice. Then, hopefully, like the dawn breaking upon the Black Hills with sifting rays of sunlight peeking through the pines, a leap of constructive induction will bask the legislative power. Thereupon, we shall not “go on — as before.” Amen, Brother Holmes.

* The state bears the evidentiary burden, in an alcohol commitment proceeding, of clear and convincing evidence. SDCL 34-20A-77. No burden of proof is set forth in SDCL 26-7A-107.