specially concurring.
¶25 I concur in the Court’s resolution of this case, but only in limited portions of the Opinion. In my concurring opinion in G.M., ¶ 74 (Gray, C.J., concurring), I observed that-contrary to certain statements by the Court and the Dissent in that cas e-Mental Health ofL.C.B. addressed the inapplicability of the “criminal law exclusionary rule” to testimony and evidence admitted at a hearing, and did not state that a district court in an involuntary commitment proceeding may view all potentially relevant information in the universe. Here, I write separately to expand on my views that certain evidentiary requirements apply in a commitment or recommitment hearing, documents merely filed with a clerk of court are not “evidence” of their contents in the context of such a hearing, and a district court may not properly base its findings on filed documents that are not admitted into evidence at a hearing.
¶26 The first inquiry under the clearly erroneous test is whether substantial evidence supports a challenged finding. See In re T.S.D., ¶ 13; Mental Health of L.C.B., 253 Mont, at 6, 830 P.2d at 1302. Section 26-1-101(2), MCA, defines “evidence” as “the means of ascertaining in a judicial proceeding the truth respecting a question of fact, including but not limited to witness testimony, writings, physical *159objects, or other things presented to the senses.” The initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side. Section 26-1-401, MCA. Thus, the party asserting a claim for relief-here, the State-bears the burden of producing evidence in support of its claim that T.P. should be recommitted. See Envir. Info. Center v. Dep. of Envir. Qual., 2005 MT 96, ¶ 14, 326 Mont. 502, ¶ 14,112 P.3d 964, ¶ 14 (citation omitted). Similarly, the burdens of persuasion and proof are on the party-here, the State-asserting the facts essential to the relief being claimed. See §§ 26-1-402 and -403, MCA. “Proof’ is the establishment of a fact by evidence. Section 26-1-101(4), MCA.
¶27 With certain exceptions not relevant here, the Montana Rules of Evidence apply to all proceedings in Montana courts. M. R. Evid. 101(a); see also §§ 53-20-112(1) and 53-21-115(7), MCA (2005). The Montana Rules of Evidence address such matters as relevance, hearsay, authentication and identification, and the contents of writings and recordings. See M. R. Evid. 401-403 and 801-1008. The court determines all preliminary questions concerning the admissibility of evidence. M. R. Evid. 104(a).
¶28 Mental Health ofL.C.B. cited to a prior involuntary commitment case relying on § 53-20-101(1), MCA, and the Court likewise cites to that statute in ¶ 14. See Mental Health ofL.C.B., 253 Mont, at 7, 830 P.2d at 1303. Section 53-20-101(1), MCA, which has not changed substantively since its enactment in 1975, reads “[t]he purpose of this part is to: (1) secure for each person who may be a person with developmental disabilities such treatment and habilitation as will be suited to the needs of the person and to assure that such treatment and habilitation are skillfully and humanely administered with full respect for the person’s dignity and personal integrity.” I have no quarrel with our reliance in Mental Health ofL.C.B. on § 53-20-101(1), MCA, in distinguishing involuntary commitment cases from criminal cases for purposes of determining the applicability of the exclusionary rule. I adamantly disagree, however, with the Court’s apparent reasoning in ¶ 14 that the statutory subsection has any bearing on whether, under the clearly erroneous test which the Court purports to apply, the evidence is sufficient to support a trial court’s findings. In re T.S.D., ¶ 13; Mental Health ofL. C.B., 253 Mont, at 6,830 P.2d at 1302.
¶29 Further, while § 53-20-128(6), MCA (2005), contemplates the recommitment of a person without a hearing if no hearing is requested or held, the fact is that a hearing actually occurred here. In the context of a hearing where the Montana Rules of Evidence apply, as discussed *160above, I cannot conceive that the Legislature intended that a person could be involuntarily committed or recommitted to the MDC for a full year after a hearing at which he or she had no meaningful opportunity to challenge the evidentiary bases for the allegations supporting the petition for commitment or recommitment. Stated differently, my view is that an involuntary commitment hearing is not merely a procedural nicety, but the only chance for a person facing a loss of liberty to put the State to its proof.
¶30 Based on the foregoing, I agree with the Court’s observations in ¶¶ 7 and 16 that, the May Plan having not been offered into evidence nor even filed, Crosbie’s testimony regarding the May Plan was insufficient to support findings necessary for T.P.’s recommitment. I disagree with the Court’s reasoning that the District Court could have properly based its findings on the March Plan, Janacaro’s Report and the RFST Report, which were neither introduced nor admitted into evidence.
¶31 I concur in the Court’s determination that the District Court erred in finding T.P. “seriously developmental^ disabled” and in the disposition of this case.
JUSTICE NELSON joins in the foregoing special concurrence of CHIEF JUSTICE GRAY.