In Interest of JS , 1998 N.D. LEXIS 89 ( 1998 )

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 20] I continue to adhere to my dissent in McMorrow v. State, 516 N.W.2d 282, 283 (N.D.1994) (VandeWalle, C.J., dissenting). Unlike McMorrow, here J.S. was informed in open court on December 29,1997, of the trial court’s decision and of J.S.’s right to appeal. I would therefore hold the notice of appeal filed March 27, 1998, was untimely and dismiss the appeal.

[¶21] The legislative intent in enacting N.D.C.C., chapter 25-03.1, Commitment Procedures, is to provide prompt treatment of persons with serious mental disorders, to safeguard individual rights and provide continuity of care to those persons with serious mental disorders. N.D.C.C. § 25-03.1-01(1), (2) & (3). The statutory provisions, including section 25-03.1-29, establishing the right to an expedited appeal and requiring the appeal be filed in 30 days, implement that intent, as does Rule 2.1, N.D.R.App.P., prescribing procedures for the appeal.

[¶ 22] The majority opinion permits an extension of this 30 day period to 90 days. Although here the commitment is for a period of one year under section 25-03.1-22(2), N.D.C.C., the appeal section also applies to section 25-03.1-22(1) which limits an initial order for involuntary treatment to not exceed 90 days. The time for appeal under the majority’s opinion is equal to the permitted period of commitment, in that instance! I recognize the time limits prescribed by chapter 25-03.1, N.D.C.C., are primarily for the benefit of the individual. But, ultimately, orderly procedure also benefits the individual.

[¶ 23] I also recognize that while the Court has the authority to promulgate rules of appellate procedure under Article VI, section 3, N.D. Const., section 6, of that same Article provides that appeals “shall be allowed from decisions of lower courts to the supreme court as may be provided by law.” Here the legislature has provided by law that the period for an appeal from a mental health commitment order is 30 days. In Cottle v. Kranz, 231 N.W.2d 777, 779 (N.D.1975), the Court noted that when it adopted Rules 3 and 4 of the N.D.R.App.P., it superseded the statutory provisions setting forth the method and time for appeal, found in sections 28-27-05 and 28-27-04, N.D.C.C., by virtue of section 27-02-09 (“statutes relating to pleadings, practice, and procedure ... enacted by the legislative assembly, have force and effect only as rules of court and remain in effect unless and until amended or otherwise altered by rules promulgated by the supreme court”) and Rule 49(b), N.D.R.App.P.

[¶24] Rule 49(b), specifies that upon the effective date of the appellate rules “all statutes and rules, or portions thereof, in conflict with these rules shall be superseded.” Rule 49(a) states the effective date as March 1, 1973. The Table of Statutes Superseded (By Statute) lists the many statutes superseded but section 25-03.1-29 is not among them, nor is section 29-32.1-14, which the majority opinion in McMorrow subjected to Rule 4, N.D.R.App.P.

[¶ 25] Interestingly, the Explanatory Note to Rule 1, N.D.R.App.P. reads in part: “[although most conflicting statutes are found in

the Table of Superseded Statutes, it is clear that any existing or future conflicting rule or statute relating to appellate procedure is also superseded under the authority, of § 27-02-09, NDCC, and Rule 49(b).” (Emphasis added).

[¶ 26] The Court thus arrogates to itself, without further court action and apparently contrary to section 27-02-09, N.D.C.C., the authority to supersede future legislatively enacted statutes although it apparently denies the Legislature the same authority to enact legislation affecting future events. See, e.g., McCabe v. North Dakota Workers Comp. Bureau, 1997 ND 145, 567 N.W.2d 201 (statute that attempts to incorporate future changes is unconstitutional),

[¶ 27] I do not question the authority of the Court to extend the time limit for appeal because of excusable neglect, although I question the wisdom of the time of extension, but the Court’s authority is properly and constitutionally exercised through its rule-making procedure, see, N.D.R.P.R., not by opinion. Article VI, § 3, N.D. Const.

[¶ 28] Finally, I recognize the effect of a dismissal of the appeal and the effect of the majority opinion is the same: J.S. remains under the commitment order.

[¶ 29] Gerald W. Vande Walle, C.J.