In re J.R.

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-127

No. 313A21

Filed 16 December 2022
IN THE MATTER OF J.R.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 278 N.C. App. 604, 2021-NCCOA-366, affirming an involuntary

commitment order entered on 3 January 2020 by Judge Pat Evans in District Court,

Durham County. Heard in the Supreme Court on 20 September 2022.

Joshua H. Stein, Attorney General, by James W. Doggett, Deputy Solicitor
General, and South A. Moore, General Counsel Fellow, for the State.

Glenn Gerding, Appellate Defender, by Wyatt Orsbon, Assistant Appellate
Defender, for respondent-appellant.

Disability Rights North Carolina, by Lisa Grafstein, Holly Stiles, and Elizabeth
Myerholtz, for Disability Rights North Carolina, National Association of Social
Workers, Promise Resource Network, and Peer Voice North Carolina, amicus
curiae.

BERGER, Justice.

¶1 Respondent was involuntarily committed after the trial court concluded that

respondent had a mental illness and was dangerous to himself. Based upon a dissent

at the Court of Appeals, the issue before this Court is whether respondent’s due

process rights were violated when the trial court, in the absence of counsel for the

petitioner, called witnesses and elicited testimony during the hearing. For the

reasons stated below, we affirm the decision of the Court of Appeals that respondent’s
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Opinion of the Court

due process rights were not violated.

I. Factual Background

¶2 In late fall 2019, respondent was found unconscious on a Durham street after

he suffered an alcohol-induced seizure. On December 9, 2019, a Duke University

Medical Center (DUMC) physician, Dr. Ayumi Nakamura, petitioned for the

involuntary commitment of respondent. That same day, a magistrate entered an

order for respondent to be taken into custody and held at DUMC while respondent

awaited judicial review.

¶3 On January 3, 2020, respondent came before the trial court for an involuntary

commitment hearing pursuant to N.C.G.S. § 122C-267. N.C.G.S. § 122C-267 (2021).

Upon calling of the case for hearing, respondent’s counsel immediately objected to the

proceeding because the State did not have a representative present. The trial court

did not explicitly overrule counsel’s objection but instead stated the following:

[L]et the record reflect, that the Public Defend[er’s] Office
objects to this court proceeding in this hearing without the
District Attorney’s Office participating. The District
Attorney’s Office of Durham County has notified this
[c]ourt that they will not be participating in these hearings
as in prior years, and this [c]ourt intends to go forward with
this hearing, and the Respondent is more than welcome to
appeal this [c]ourt’s decision.1

1 The trial court noted that the Durham County District Attorney’s Office had notified
the trial court that it would not be participating, but it is unclear why the district attorney’s
office would have been expected to participate in this hearing at all when a doctor from
DUMC was the petitioner in the case. The record does not contain any reference to pending
criminal charges, respondent’s capacity to proceed in a criminal case, or a determination that
respondent had been found not guilty of a criminal charge by reason of insanity. See N.C.
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¶4 The trial court then called Dr. Sandra Brown, a physician and psychiatrist

from DUMC who had been subpoenaed to testify. The court began direct examination

of Dr. Brown by asking her the following: “state your name and occupation for this

[c]ourt, and tell me what it is you want me to know about this matter.”

¶5 Dr. Brown testified that respondent had a history of chronic obstructive

pulmonary disease (COPD) and alcohol use disorder, and he had been hospitalized

approximately eight times in the prior year for alcohol withdrawal or for

hyponatremia, related to the disorder. Respondent also suffered from deficits in

executive functioning and bipolar disorder which caused manic episodes. Respondent

had not received full treatment for his conditions because he left against medical

advice on each admission. Additionally, respondent had been squandering his

retirement money, had been homeless, was drinking regularly, and had been charged

frequently with being intoxicated in public.

¶6 The trial court then asked Dr. Brown, “Anything else?” Dr. Brown responded

by explaining that respondent’s behavior of spending money was likely due to his

alcohol use disorder and the bipolar manic episodes that he was experiencing as a

result of his bipolar disorder, and she opined that these behaviors were “likely to

cause harm to self.” Dr. Brown expressed concern that respondent would not get

Const. art. IV, § 18; N.C.G.S. §§ 7A-61; 122C-264(d)–(d1), 122C-268(c), 122C-268.1, 122C-276
(2021).
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necessary medications and that he would not be properly tapered off a potentially

dangerous and addictive medication if he were not involuntarily committed.

¶7 Again, the trial court asked, “Anything else?” Dr. Brown responded that she

had nothing more to share with the court. Respondent’s counsel then cross-examined

Dr. Brown. After cross examination concluded, the following exchange occurred:

[Trial Court]: Dr. Brown, is it your testimony that the
Respondent is a danger to himself?

[Dr. Brown]: Yes.

[Trial Court]: All right. And what about whether or not he’s
a danger to others?

[Dr. Brown]: I believe, at this time, he is not a direct danger
to others, but in the past he has been intoxicated in public,
and it’s hard to predict what someone like that might do.

[Trial Court]: All right. And how long are you asking that
he be committed for?

[Dr. Brown]: We’re asking for 30 days, given that we’re not
sure exactly what will happen with the guardianship
proceedings, and we feel that it’s important for that to be
settled, as far as creating a safe plan for aftercare.

[Trial Court]: All right. Based on my questions, does the
Respondent have anything else they wish to ask this
witness?

[Respondent’s counsel]: No, Your Honor.

[Trial Court]: All right. . . . Any other evidence on behalf of
the Petitioner?

[No audible response.]

[Trial Court]: Will there be any other evidence on behalf of
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the Respondent?

¶8 Counsel for respondent then called respondent to the witness stand.

Respondent testified on his own behalf. He expressed that he did not feel that he has

ever posed a threat to himself or others. He answered affirmatively when asked by

his counsel whether he was aware that he had a mental health diagnosis and that he

needed medication to treat his mental health issues. He also expressed a desire to

“be responsible for [him]self” but would be willing to work with a guardian. Once

respondent’s counsel concluded questioning respondent, the trial court asked

respondent, “Anything else you want me to know . . .?” Respondent replied in the

negative.

¶9 The trial court then asked respondent’s counsel, “Do you wish to be heard

further, counsel? Any other evidence? Any argument?” Respondent’s counsel

responded that she had no further evidence to present on respondent’s behalf and the

trial court allowed respondent’s counsel to proceed to closing argument.

¶ 10 At the end of the hearing, the trial court stated that it found that respondent

had a mental illness and was a danger to himself, and the trial court entered a thirty-

day commitment order. Further, the trial court made written findings that there was

clear, cogent, and convincing evidence to support involuntary commitment; that

respondent was suffering from bipolar disorder, COPD, and alcohol abuse; and that

respondent was a danger to himself.
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Opinion of the Court

¶ 11 Respondent gave notice of appeal in open court and subsequently filed a

written notice of appeal.2 On July 20, 2021, a divided panel of the Court of Appeals

affirmed the trial court’s order of commitment “for the reasons stated in the majority

opinion and concurring opinion addressing the ‘Due Process Concerns’ issue in In re

C.G., [278] N.C. App. [416], 2021-NCCOA-344.” In re J.R., 278 N.C. App. 604, 2021-

NCCOA-366, ¶ 7; see In re C.G., 278 N.C. App. 416, 2021-NCCOA-344, ¶ 25 (finding

that “the trial court did not violate Respondent’s right to an impartial tribunal”). The

dissenting judge in In re C.G. stated that he could not “conclude that Respondent

received a full and fair hearing before a neutral officer of the court.” Id. ¶ 46 (Griffin,

J., dissenting).

¶ 12 Respondent appeals to this Court based upon the dissent at the Court of

Appeals. On November 15, 2021, this Court allowed respondent’s motion to designate

respondent’s case as the lead case on appeal. In his appeal, respondent contends that

the Court of Appeals erred in determining that his due process rights were not

violated. Specifically, respondent argues that the trial court failed to remain

independent and impartial when it “elicited the evidence supporting [respondent]’s

involuntary commitment and then, based on the evidence the judge introduced,

2Five other respondents appealed from involuntary commitments orders on similar
grounds. See In re C.G., No. COA20-520 (Durham); In re Q.J., No. COA20-551 (Durham); In
re C.G.F., No. COA20-574 (Durham); In re E.M.D.Y., No. COA20-685 (Durham); In re R.S.H.,
No. COA20-777 (Durham).
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decided to involuntarily commit [respondent].” Respondent implicitly requests a

blanket rule that would prohibit the trial court from asking questions which elicit

evidence and satisfy the burden of proof because, in so doing, the trial court ceases to

be impartial. We decline to adopt such a rule.

II. Analysis

¶ 13 Both our federal and state constitutions require due process. The Constitution

of the United States declares that “[n]o state shall . . . deprive any person of life,

liberty, or property, without due process of law,” U.S. Const. amend XIV, § 1, and our

State Constitution states that “[n]o person shall be taken, imprisoned, or disseized of

his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived

of his life, liberty, or property, but by the law of the land,” N.C. Const. art. I, § 19.

¶ 14 Under our law, “anyone who has knowledge of an individual who has a mental

illness and is either (i) dangerous to self . . . or dangerous to others . . . or (ii) in need

of treatment in order to prevent further disability or deterioration that would

predictably result in dangerousness,” may file an affidavit and petition the court to

have the individual involuntarily committed. N.C.G.S. § 122C-261(a) (2021). After

the initial affidavit is filed, the clerk or magistrate must determine whether

“reasonable grounds” exist to believe that the facts in the affidavit are true,

respondent has a mental illness, and one of the aforementioned criteria are met,

before taking the individual into custody. N.C.G.S. § 122C-261(b).
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¶ 15 Once an individual is taken into custody, the individual must go before a

commitment examiner for further determinations of whether the requirements for

involuntary commitment are met. N.C.G.S. §§ 122C-263(c), 122C-263(d)(2). If the

examiner recommends involuntary commitment, the individual must be admitted to

a 24-hour facility where the individual must be examined by a physician to determine

once again if the criteria for involuntary commitment are met. N.C.G.S. §§ 122C-

263(d)(2), 122C-266.

¶ 16 From that point, if the physician recommends involuntary commitment, within

ten days a hearing must take place before the trial court. N.C.G.S. § 122C-268(a).

An individual may be involuntarily committed if the trial court finds “by clear, cogent,

and convincing evidence” that the respondent is mentally ill and is a danger to

himself or others. N.C.G.S. § 122C-268(j).

¶ 17 An individual facing involuntary commitment has numerous procedural

protections, including the right to counsel, N.C.G.S. § 122C-268(d); the right to have

the commitment reports and other relevant documents shared with the trial court,

N.C.G.S. § 122C-266(c); and the right to confront and cross examine witnesses.

N.C.G.S. § 122C-268(f).

¶ 18 It is uncontroverted that an involuntary commitment proceeding implicates

the deprivation of a liberty interest, triggering due process concerns. The Supreme

Court of the United States has “repeatedly . . . recognized that civil commitment for
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any purpose constitutes a significant deprivation of liberty that requires due process

protection.” Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d

323 (1979) (citing Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435

(1972)); Humphrey v. Cady, 405 U.S. 504, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972); In

re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); Specht v. Patterson, 386

U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967)). One such element of due process

protection is the presence of an independent decisionmaker. See Vitek v. Jones, 445

U.S. 480, 495–96, 100 S. Ct. 1254, 1264–65, 63 L. Ed. 2d 552 (1980) (holding that the

district court properly determined the procedures necessary, including that an

independent decisionmaker is a requirement of due process, in the involuntary

commitment context). “The Due Process Clause entitles a person to an impartial and

disinterested tribunal in both civil and criminal cases.” Marshall v. Jerrico, Inc., 446

U.S. 238, 242, 100 S. Ct. 1610, 1613, 64 L. Ed. 2d 182 (1980). Accordingly, “a fair

tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136,

75 S. Ct. 623, 625, 99 L. Ed. 942 (1955).

¶ 19 However, this Court has recognized that “[j]udges do not preside over the

courts as moderators, but as essential and active factors or agencies in the due and

orderly administration of justice. It is entirely proper, and sometimes necessary, that

they ask questions of a witness . . . .” State v. Hunt, 297 N.C. 258, 263, 254 S.E.2d

591, 596 (1979) (quoting Eekhout v. Cole, 135 N.C. 583, 583, 47 S.E. 655, 657 (1904)).
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Further, instances arise that require the trial court to ask questions to fulfill its role

in the judicial process. In State v. Perry, this Court declared that “there are times in

the course of a trial, when it becomes the duty of the judge to propound competent

questions in order to obtain a proper understanding and clarification of the testimony

of the witness or to bring out some fact that has been overlooked.” 231 N.C. 467, 470,

57 S.E.2d 774, 776 (1950).

¶ 20 Notably, the rules of evidence contemplate that the court will actively

participate in proceedings. Rule 614 of the North Carolina Rules of Evidence

expressly allows judges to participate by calling witnesses and questioning them. The

rule states that “[t]he court may, on its own motion . . . call witnesses, and all parties

are entitled to cross-examine witnesses thus called.” N.C.G.S. § 8C-1, Rule 614(a)

(2021). Additionally, “[t]he court may interrogate witnesses, whether called by itself

or by a party.” N.C.G.S. § 8C-1, Rule 614(b) (2021). In neither case does a trial court

shed its impartiality or abandon its role as an independent decisionmaker.

¶ 21 Respondent contends, however, that when counsel for a petitioner does not

appear, the trial court acts as prosecutor for the State when it asks questions and

elicits testimony which tends to support the commitment of respondent. It is true, as

respondent argues, that in Vitek, the U.S. Supreme Court concluded that involuntary

commitment proceedings are adversarial in nature. 445 U.S. at 495, 100 S. Ct. at

1265. However, “[w]hat makes a system adversarial rather than inquisitorial is not
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the presence of counsel . . . but rather, the presence of a judge who does not (as an

inquisitor does) conduct the factual and legal investigation himself, but instead

decides on the basis of facts and arguments pro and con adduced by the parties.”

McNeil v. Wisconsin, 501 U.S. 171, 181 n.2, 111 S. Ct. 2204, 2210, 115 L. Ed. 2d 158

(1991). In this case, the judge properly decided on the basis of facts presented at the

hearing and arguments of the parties—respondent, respondent’s counsel, and a

doctor at DUMC who sought to have respondent committed for his health. As such,

the judge did not take on the role of a prosecutor merely because counsel was not

present.

¶ 22 Under our law, a trial court does not, and cannot as a matter of practicality,

automatically cease to be impartial when it merely calls witnesses and asks questions

of witnesses which elicit testimony. Such an argument elevates form over substance

and would have potentially far-reaching, negative consequences for various types of

pro se cases, contempt proceedings, domestic violence actions and sensitive juvenile

hearings, let alone commitment proceedings. As the Supreme Court has stated, an

argument such as respondent’s “assumes too much and would bring down too many

procedures designed, and working well, for a governmental structure of great and

growing complexity.” Richardson v. Perales, 402 U.S. 389, 410, 91 S. Ct. 1420, 1432,

28 L. Ed. 2d 842 (1971).

¶ 23 Here, a bench trial occurred based upon a petition filed by DUMC. No jury
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was present, and there was no risk of any improper influence by the trial court’s

actions. See State v. Smith, 240 N.C. 99, 102, 81 S.E.2d 263, 265 (1954) (announcing

that “the probable effect or influence upon the jury” prevents a judge from casting

doubt on the credibility of a witness or impeaching a witness such that it would

prejudice either party). The trial court did not ask questions designed or calculated

to impeach any witnesses, the judge merely asked questions based upon the contents

of the petition, such as asking whether there was “anything else” that the witness

would like to say and asking the witness to “tell [the court] what it is you want [the

court] to know about this matter.” The most specific questions asked by the trial

court were clarifying questions to fulfill the trial court’s duty to “obtain a proper

understanding and clarification of the testimony of the witness” to confirm whether

the requirements for involuntary commitment had been met. Perry, 231 N.C. at 470,

57 S.E.2d at 776.

¶ 24 In State v. Stanfield, the Court of Appeals found that when “the judge asked a

neutral question which, depending upon the answer would benefit either the State or

the defendant,” no violation of due process occurred. 19 N.C. App. 622, 626, 199

S.E.2d 741, 744 (1973). In short, even though the “testimony tended to prove an

element” of the offense with which the defendant was charged, it was not sufficient

to be improper questioning by the judge. Id. at 626, 199 S.E.2d at 744.

¶ 25 Here, the trial court remained an independent decisionmaker, and the answers
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to the trial court’s questions weighed toward commitment of respondent. The

testimony given in response to the court’s questions established the required

elements to have respondent committed, but like Stanfield, that alone is not sufficient

to find a violation of due process. The trial court did not advocate for any particular

resolution and did not exceed constitutional bounds with its questions even though

the responses supported involuntary commitment.

¶ 26 Respondent argues that the trial court attempted to fulfil two roles of both

adjudicator and prosecutor. While we disagree that the trial court stepped into any

role other than its proper role as an independent decisionmaker, we recognize that

the United States Supreme Court has addressed the ability of an adjudicator to

perform dual roles. In doing so, the Court has found that due process is not violated

when the same individual both investigates and adjudicates, while making it clear

that when the accuser doubles as the adjudicator, due process is violated. Withrow

v. Larkin, 421 U.S. 35, 52, 95 S. Ct. 1456, 1467, 43 L. Ed. 2d 712 (1975); Williams v.

Pennsylvania, 579 U.S. 1, 8, 136 S. Ct. 1899, 1905, 195 L. Ed. 2d 132 (2016); In re

Murchison, 349 U.S. at 139, 75 S. Ct. at 627.

¶ 27 In the context of administrative agencies, the Supreme Court of the United

States has rejected “the bald proposition . . . that agency members who participate in

an investigation are disqualified from adjudicating.” Withrow, 421 U.S. at 52, 95 S.

Ct. at 1467. Put another way, both investigating and adjudicating a matter is not
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sufficient, standing alone, to disqualify a judge for lacking impartiality.

¶ 28 Yet, the Supreme Court has also concluded that the same person acting as

accuser and adjudicator offends due process. Williams, 579 U.S. at 8, 136 S. Ct. at

1905 (citing In re Murchison, 349 U.S. at 136). In Murchison, the judge acted as a

grand jury and then tried cases as the judge. 349 U.S. at 137, 75 S. Ct. at 625. The

Court held that due process was violated when a judge acted as both a grand jury,

the accuser, and the adjudicator of the case. Id. at 139, 75 S. Ct. at 627.

¶ 29 Here, however, the trial court did not function as an investigator or an accuser.

The trial court did not investigate the underlying facts or initiate the filing of the

petition to have respondent committed; those functions, i.e., being the investigator

and the accuser, were performed by individuals with DUMC. The trial court simply

presided over the hearing and asked questions to increase understanding and

illuminate relevant facts to determine whether respondent met the necessary

conditions for commitment.

¶ 30 By calling the witness from DUMC to testify and asking even-handed

questions, the trial court did not advocate for or against the involuntary commitment

of respondent; it merely heard evidence in conjunction with contents of the petition

and applied the law to the facts as presented. These neutral and clarifying questions

do not call into question the trial court’s impartiality and do not offend due process.

III. Conclusion
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¶ 31 For the reasons stated herein, the trial court did not violate respondent’s due

process right to an impartial tribunal, and we affirm the decision of the Court of

Appeals.

AFFIRMED.
 Justice EARLS dissenting.

¶ 32 In re J.R. and its companion cases1 arose when Duke Hospital, a private entity,

filed a petition for the involuntary commitment of each of the six respondents in these

cases. Under North Carolina law, counsel for the State must appear at any hearing

concerning an involuntary commitment at a state facility, such as those at one of the

State’s three regional psychiatric hospitals or at UNC Hospitals in Chapel Hill.

N.C.G.S. §§ 122C-268(b), 122C-270(f) (2021). But when a person is held in custody for

treatment at private facilities, counsel for the State is under no statutory obligation

to appear. § 122C-268(b). For commitments related to private facilities, like those at

Duke Hospital, “the Attorney General may, in his discretion, designate an attorney

who is a member of his staff to represent the State’s interest.” Id. (emphasis added).

This statute differs substantially from that of other states which explicitly

contemplate the issue before this Court and provide that counsel for the State or

petitioning party must appear and present the case to the trial court.2

1 See In re C.G., No. 308A21; In re R.S.H., No. 317A21; In re E.M.D.Y., No. 279A21; In
re Q.J., No. 309A21; In re C.G.F., No. 312A21. These cases were consolidated for oral
argument on this due process issue.
2 See, e.g., N.D. Cent. Code § 25-03.1-19(2) (Lexis, effective Aug. 1, 2021) (“At the

hearing, evidence in support of the petition must be presented by the state’s attorney, private
counsel, or counsel designated by the court.”); Kan. Stat. Ann. § 59-2959(e) (Lexis, effective
July 1, 2022) (“If the petitioner is not represented by counsel, the county or district attorney
shall represent the petitioner, prepare all necessary papers, appear at the hearing and
present such evidence as the county or district attorney determines to be of aid to the court
in determining whether or not there is probable cause to believe that the person with respect
to whom the request has been filed is a mentally ill person subject to involuntary commitment
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Earls, J., dissenting

¶ 33 The majority holds that there is no due process violation when a person is

involuntarily committed after a trial judge comingles adjudicatory and prosecutorial

functions by eliciting the testimony of witnesses and building the record that then is

the basis to support the individual’s involuntary commitment so long as the judge

merely asks “even-handed questions” that are “neutral and clarifying. However, when

for care and treatment under this act, and that it would be in the best interests of the person
to be detained until the trial upon the petition.”); Iowa Code § 229.12(1) (West, effective July
1, 2018) (“At the hospitalization hearing, evidence in support of the contentions made in the
application shall be presented by the county attorney.”); N.J. Stat. Ann. § 30:4-27.12(b) (West,
effective Aug. 11, 2010) (“[T]he assigned county counsel is responsible for presenting the case
for the patient’s involuntary commitment to the court, unless the county adjuster is licensed
to practice law in this State, in which case the county adjuster shall present the case for the
patient’s involuntary commitment to the court.”); Minn. Stat. § 253B.08(5a) (West, effective
Aug. 1, 2020) (“The proposed patient or the patient’s counsel and the county attorney may
present and cross-examine witnesses, including court examiners, at the hearing.”); Haw. Rev.
Stat. § 334-60.5(e) (West, effective July 1, 2018) (“The attorney general, the attorney general’s
deputy, special deputy, or appointee shall present the case for hearings convened under this
chapter, except that the attorney general, the attorney general’s deputy, special deputy, or
appointee need not participate in or be present at a hearing whenever a petitioner or some
other appropriate person has retained private counsel who will be present in court and will
present to the court the case for involuntary hospitalization.”); Or. Rev. Stat. § 426.095(3)
(West, effective June 16, 2015) (“The person alleged to have a mental illness and the
individual representing the state’s interest shall have the right to cross-examine all the
following: (a) Witnesses. (b) The individual conducting the investigation. (c) The examining
physicians or other licensed independent practitioners who have examined the person.”); Fla.
Stat. § 394.467(6)(a)(2) (West, effective July 1, 2016) (“The state attorney for the circuit in
which the patient is located shall represent the state, rather than the petitioning facility
administrator, as the real party in interest in the proceeding.”); Ariz. Rev. Stat. Ann. § 36-
503.01 (West, effective July 1, 2016) (“Whenever a physician or other person files a petition
for court-ordered evaluation or court-ordered treatment on behalf of a state or county
screening, evaluation or mental health treatment agency, the attorney general or the county
attorney for the county in which the proceeding is initiated, as the case may be, shall
represent the individual or agency in any judicial proceeding for involuntary detention or
commitment and shall defend all challenges to such detention or commitment.”); 18 Vt. Stat.
Ann. § 7615(d) (Lexis, effective July 1, 2014) (“The attorney for the State and the proposed
patient shall have the right to subpoena, present, and cross-examine witnesses, and present
oral arguments.”).
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a party does not appear, the judge necessarily must comingle these functions, thereby

abandoning their role as an impartial decisionmaker and violating the respondent’s

right to due process. See Sung v. McGrath, 339 U.S. 33, 46 (1950), superseded by

statute as recognized in Marcello v. Bonds, 349 U.S. 302 (1955). To be sure, a trial

judge is placed in a difficult position when deciding whether to proceed after hearing

from the State that it would “not be participating in these hearings” even though it

had elected to do so “in prior years.” This is the functional equivalent of a party failing

to appear at all. It is one thing for a trial court to proceed when a party appears but

is unrepresented by counsel, it is quite another thing for a trial court to proceed when

a party with the burden of proof fails to appear.

¶ 34 Setting up a straw man by taking respondent’s argument to illogical extremes,

the majority mischaracterizes respondent’s position as “implicitly request[ing] a

blanket rule that would prohibit the trial court from asking questions which elicit

evidence and satisfy the burden of proof because, in so doing, the trial court ceases to

be impartial.” Respondent and the amicus party in these cases are seeking the

fundamental due process guarantees of a neutral factfinder and a truly adversarial

process when an individual’s personal liberty is at stake. They are not arguing that a

trial court can never ask a witness a question. The problem in these cases is that the

trial court elected to proceed to hear a case when one party failed to appear. The fact
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that, as the majority points out, the respondent has a right to counsel does not satisfy

their right to a neutral decisionmaker.

¶ 35 When a person is involuntarily committed to a psychiatric hospital, they

experience a “massive curtailment of liberty.” Vitek v. Jones, 445 U.S. 480, 491 (1980)

(quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972)). Accordingly, the person has a

“powerful” “interest . . . in not being arbitrarily classified as mentally ill and subjected

to unwelcome treatment.” Id. at 495. In the case of involuntary commitment, the

deprivation of liberty does not stop with the person’s “loss of freedom from

confinement” and involuntary commitment — as the name implies — also involves

“[c]ompelled treatment.” Id. at 492 (citing Addington v. Texas, 441 U.S. 418, 427

(1979)). Involuntary commitment also comes with serious collateral consequences

such as restrictions on a parent’s fundamental right to custody and control of their

children, being forbidden from owning a firearm, and being prohibited from obtaining

several types of professional licenses, including a license to practice law. See In re

Carter, 25 N.C. App. 442, 443–44 (1975) (wife’s involuntary commitment “may well

affect the determination” of her child custody dispute with her husband); District of

Columbia v. Heller, 554 U.S. 570, 626, 627 n.26 (2008) ( “longstanding prohibitions”

on the possession of firearms by people suffering from mental illness are

“presumptively lawful”); N.C.G.S. § 83A-15(a) (2021) (architectural license may be

denied, suspended, or revoked due to mental disability); N.C.G.S. § 84-28(g) (2021)
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(law license may be inactivated because of mental incompetence); N.C.G.S. § 90-14(a)

(2021) (medical license may be revoked due to mental illness); N.C.G.S. § 90-171.37(a)

(2021) (nursing license may be denied, suspended, or revoked because of mental

illness). Indeed, a person’s involuntary commitment is “always an ominous presence”

that may be used to attack their competence, credibility, and character whenever

there is “any interaction between the individual and the legal system.” In re Hatley,

291 N.C. 693, 695 (1977) (quoting In re Ballay, 482 F.2d 648, 652 (D.C. Cir. 1973)).

Our society can also be unkind to people with mental illness, and “[w]hether we label

this phenomena ‘stigma’ or choose to call it something else . . . we [must] recognize

that [involuntary commitment] . . . can have a very significant impact on the

individual.” Vitek, 445 U.S. at 492 (first and second alterations in original) (quoting

Addington, 441 U.S. at 425–26). Accordingly, the United States Supreme Court has

acknowledged that “an erroneous commitment is sometimes as undesirable as an

erroneous conviction.” Addington, 441 U.S. at 428 (citing J. Wigmore, Evidence §

1400 (Chadbourn rev. 1974)).

¶ 36 A person cannot be committed against their will without due process of law.

Addington, 441 U.S. at 425. This concept is expressly stated in Addington, which

noted that the United States Supreme Court “repeatedly has recognized that civil

commitment for any purpose constitutes a significant deprivation of liberty that

requires due process protection.” Id.; see, e.g., Jackson v. Indiana, 406 U.S. 715
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(1972); Humphrey, 405 U.S. 504; In re Gault, 387 U.S. 1 (1967); Specht v.

Patterson, 386 U.S. 605 (1967). The hallmark of due process is “fundamental fairness”

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24 (1981), and in the context of judicial

proceedings, this equates to the right to a “full and fair hearing,” Miller v. French,

530 U.S. 327, 350 (2000). This right is essential in guarding against erroneous

involuntary commitment and is designed to give the person to be committed the

ability to “understand the nature of what is happening to him” and to “challenge the

contemplated action.” Vitek, 445 U.S. at 496.

¶ 37 J.R. argues that in these circumstances, the trial court acts as a prosecutor for

the State when it elicits testimony that supports commitment of the respondent. In

response, the majority acknowledges that the United States Supreme Court held in

Vitek, 445 U.S. 480, that involuntary commitment proceedings are adversarial

proceedings but then illogically maintains that because a medical doctor testified as

a witness in this case, the trial judge did not actually take on the role of a prosecutor.

¶ 38 The adversarial nature of involuntary commitment hearings was indeed

acknowledged by the United States Supreme Court in Vitek, 445 U.S. 480, and

Addington, 441 U.S. 418. The Court observed that these proceedings are based on an

“essentially medical” question, Vitek, 445 U.S. at 495, and the determination “turns

on the meaning of the facts which must be interpreted by expert psychiatrists and

psychologists.” Addington, 441 U.S. at 429. It is precisely because of this, and “ ‘[t]he
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subtleties and nuances of psychiatric diagnoses’ that . . . the requirement of adversary

hearings [is justified].” Vitek, 445 U.S. at 495 (first alteration in original) (quoting

Addington, 441 U.S. at 429); see also Foucha v. Louisiana, 504 U.S. 71, 81 (1992)

(Louisiana’s statutory commitment procedure for insanity acquittee violated due

process because, among other things, it failed to provide the acquittee with an

“adversary hearing”); French v. Blackburn, 428 F. Supp. 1351, 1356 (M.D.N.C. 1977)

(involuntary commitment procedure under repealed Chapter 122 of the General

Statutes afforded due process because, among other things, it provided “a full

adversary hearing”), aff’d, 443 U.S. 901 (1979); Logan v. Arafeh, 346 F. Supp. 1265,

1270 (D. Conn. 1972) (because Connecticut’s involuntary commitment statute

required “an adversary hearing,” among other things, it complied with due process),

aff’d sub nom., Briggs v. Arafeh, 411 U.S. 911 (1973). Further, over thirty years ago

our own Court of Appeals held that one of the safeguards in commitment cases

guaranteed by due process is “a full adversary hearing.” In re Hernandez, 46 N.C.

App. 265, 269 (1980) (citing French, 428 F. Supp. 1351).

¶ 39 The adversarial model is distinct from “the inquisitorial model in which the

judge — a neutral decisionmaker — conducts an independent investigation” and

instead “our adversarial system requires the parties to present their own arguments

and evidence at trial.” State v. Lawrence, 365 N.C. 506, 512 (2012). It follows that

under this model, the judge must decide whether a person is to be involuntarily
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committed based on the “facts and arguments pro and con adduced by the parties”

and not based on the judge’s own “factual and legal investigation.” McNeil v.

Wisconsin, 501 U.S. 171, 181 n.2 (1991).

¶ 40 Although the majority acknowledges that involuntary commitment hearings

are subject to due process protections, they hold that “[i]t is entirely proper, and

sometimes necessary, that [a judge] ask questions of a witness,” citing State v. Hunt,

297 N.C. 258, 263 (1979). In doing so, they cite two of this Court’s decisions in criminal

cases, Hunt, 297 N.C. 258, and State v. Perry, 231 N.C. 467 (1950). However, these

cases are not analogous to J.R.’s case because they contemplate an entirely different

scenario and thus answer a separate question, namely if a judge may ask questions

of a witness in criminal cases where both parties are represented by counsel. Because

of the nature of criminal cases, the State was required to appear and put on its case

by calling witnesses, introducing evidence, and eliciting testimony. Thus, in those

cases it may become “the duty of the judge to propound competent questions in order

to obtain a proper understanding and clarification of the testimony of the witness or

to bring out some fact that has been overlooked” without violating the defendant’s

due process rights. Perry, 231 N.C. at 470. Importantly, J.R. does not argue that

there is a due process violation any time a judge asks a question. Rather, he argues

that in this case the judge did not simply ask the doctor a question or two to clarify

her testimony or develop some overlooked fact, as this Court contemplated in Perry.
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See Perry, 231 N.C. at 470. Instead, the trial court called the only witness, asked all

the questions, and elicited all the evidence used to support J.R.’s commitment.

¶ 41 The majority also notes that under State v. Stanfield, 19 N.C. App 622, 626

(1973), there is no due process violation even when a trial court elicits the testimony

used to prove an element of the crime in a criminal case. However, as noted above,

criminal cases are not analogous because both parties are represented by counsel. In

the involuntary commitment context where an attorney for the State or petitioner is

not present, the situation discussed in Stanfield does not exist and the judge will be

forced, perhaps unwillingly, to act as the prosecuting party by calling all the

witnesses and eliciting the testimony and other evidence necessary to commit the

respondent.

¶ 42 The majority also states that because this was a bench trial, and there was no

jury present, “there was no risk of any improper influence by the trial court’s actions,”

citing State v. Smith, 240 N.C. 99, 102 (1954). But this conclusion does not address

J.R.’s argument. J.R. does not contend that the trial court’s questions improperly

influenced a jury, instead his argument is that when a trial judge elicits testimony

and weighs the evidence, there is a risk that the judge’s impartiality is compromised.

This principle was recognized nearly one hundred years ago by the United States

Supreme Court in Tumey v. Ohio, 273 U.S. 510 (1927), where the Court explained

that the test for impartiality is not whether judges “of the highest honor and the
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greatest self-sacrifice could carry . . . on [the proceeding] without danger of injustice,”

id. at 532. Instead, the test for impartiality is whether the judicial procedures “offer

a possible temptation to the average [person] as a judge to forget the burden of proof

required . . . or which might lead [them] not to hold the balance nice, clear, and true

between the [S]tate and the accused.” Id. The Supreme Court later affirmed this

principle in Sung, 339 U.S. 33, where the Court noted that when the trial court has

“at once” the responsibility of “presenting” the case and “appraising [its] strength,” a

“genuinely impartial hearing conducted with critical detachment, is psychologically

improbable if not impossible,” id. at 44. Accordingly, the Court concluded that

“commingling” the functions of “investigation or advocacy” and “deciding” are “plainly

undesirable.” Id.

¶ 43 Additionally, in In re Spivey this Court has recognized that due process

requires a neutral decisionmaker. 345 N.C 404, 417 (1997). There, a local district

attorney was judicially removed from office after repeatedly calling an African

American man a racial slur in public to provoke a fight. Id. at 408, 416. On appeal,

the former district attorney argued the trial court had violated his due process rights

by appointing independent counsel to present the evidence concerning his conduct

because the appointment had “resulted in his being removed by a court which had

directed and controlled the discovery and presentation of evidence against him.” Id.

at 417. But this Court rejected that argument reasoning that because the trial judge
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“should not both present the case against a district attorney and pass judgment on

the case” the judge had the power to appoint independent counsel. Id. Thus, there

was no due process violation.

¶ 44 Furthermore, the majority states that in the administrative agency context,

the United States Supreme Court has rejected “the bald proposition . . . that agency

members who participate in an investigation are disqualified from adjudicating,”

quoting Withrow v. Larkin, 421 U.S. 35, 52 (1975). However, administrative agencies

are subject to Section 554 of the Administrative Procedure Act which states that “[a]n

employee or agent engaged in the performance of investigative or prosecuting

functions for an agency in a case may not, in that or a factually related case,

participate or advise in the decision.” 5 U.S.C. § 554(d). Thus, many areas of federal

agency law are subject to greater due process protections than the involuntary

commitment proceedings contemplated in J.R.’s case.

¶ 45 At least two other states have held that in the context of involuntary

commitment proceedings, a due process violation exists when the judge takes on the

role of the prosecutor and questions the witness in support of commitment. In In re

Commitment of Raymond S., 263 N.J. Super. 428, 432 (Super. Ct. App. Div. 1993),

New Jersey’s intermediate appellate court explained:

Although we were advised at oral argument that
county counsel was present at the hearing, it is not
reflected in the transcript. The case for commitment was
advanced by the judge rather than by county counsel. Such
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procedure is inappropriate because of the statutory
requirement that county counsel present the case for
commitment, and also because it places the judge in the
role of an adversary rather than that of a neutral decision
maker.

Id. at 432. The Iowa Supreme Court has also found a due process violation when the

judge “elicit[ed] testimony that . . . support[ed] the applicants’ burden of proof.” In

re S.P., 719 N.W.2d 535, 539 (Iowa 2006). In In re S.P., the court held

that an analysis based solely upon the nature of the
questions asked by the referee or district court judge is not
wholly determinative of the issue of advocacy. We cannot
provide the trial court a cookbook of right or wrong
questions, but merely observe that any effective
questioning will inevitably lead to the heart of the case.
When the court itself directs the case in this way it is
marshaling or assembling the evidence. Artfully crafted
questions will not hide the court’s role in the proceedings
at that point—the role of deciding what evidence is needed
to prove the case and steering the case down that road.

Id. at 539–40. There, the court cautioned against a case-by-case approach when a

due process violation is raised due to the commingling of adjudicatory and

prosecutorial functions.

¶ 46 Today, the majority affirms an unfortunate case-by-case legal standard where

due process protections depend not on the adherence to well-established procedures

of an adversarial process but rather on the particular questions asked by the judge.

More fundamentally, this leaves trial judges, when faced with no party appearing as

petitioner in a private-facility involuntary commitment proceeding, with the
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unenviable task of deciding how to present all the evidence necessary to meet the

standard for involuntary commitment while also determining whether they have

done a good enough job of doing so. The majority’s opinion sets out some parameters

by identifying the features that made the process in these cases adequate.

Additionally, a trial judge cannot use language or conduct themselves in a way “which

conceivably could be construed as advocacy in relation to petitioner or as adversative

in relation to the respondent.” In re Q.J., 278 N.C. App. 452, 2021-NCCOA-346, ¶ 21

(quoting In re Perkins, 60 N.C. App. 592, 594 (1983)). Similarly, trial courts must “be

careful to avoid prejudice to the parties.” Id. ¶ 22 (citing State v. Howard, 15 N.C.

App. 148, 150–51 (1972)). Finally, trial courts in these circumstances may not

impeach a witness’s credibility. Id. Based on our own caselaw, any of the above

instances would violate a respondent’s due process right to a neutral decisionmaker.

¶ 47 Finally, it is important to note that due process standards in these proceedings

serve not only to protect against erroneous commitments but also ensure that the

commitment process is not overused. Under N.C.G.S. § 122C-268(j) (2021), an

involuntary commitment order must be supported by findings demonstrating “clear,

cogent, and convincing evidence that the respondent is mentally ill and dangerous to

self . . . or dangerous to others.” Under § 122C-3(11)(a), a person is considered a

danger to themselves and can be involuntarily committed if:

a. Within the relevant past, the individual has done any of
the following:
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1. The individual has acted in such a way as to show all of
the following:

I. The individual would be unable, without care,
supervision, and the continued assistance of others not
otherwise available, to exercise self-control, judgment, and
discretion in the conduct of the individual's daily
responsibilities and social relations, or to satisfy the
individual's need for nourishment, personal or medical
care, shelter, or self-protection and safety.

II. There is a reasonable probability of the individual's
suffering serious physical debilitation within the near
future unless adequate treatment is given pursuant to this
Chapter. A showing of behavior that is grossly irrational,
of actions that the individual is unable to control, of
behavior that is grossly inappropriate to the situation, or
of other evidence of severely impaired insight and
judgment shall create a prima facie inference that the
individual is unable to care for himself or herself.

2. The individual has attempted suicide or threatened
suicide and that there is a reasonable probability of suicide
unless adequate treatment is given pursuant to this
Chapter.

3. The individual has mutilated himself or herself or has
attempted to mutilate himself or herself and that there is
a reasonable probability of serious self-mutilation unless
adequate treatment is given pursuant to this Chapter.

§ 122C-3(11)(a)(1), (2), (3). Under this standard, “[p]revious episodes of

dangerousness to self, when applicable, may be considered when determining

reasonable probability of physical debilitation, suicide, or self-mutilation.” Id. at §

11(a)(3). Furthermore, under North Carolina law, a person can be involuntarily
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committed if they are a danger to others. Id. at § 11(b). A person is considered a

danger to others if:

Within the relevant past, the individual has inflicted or
attempted to inflict or threatened to inflict serious bodily
harm on another, or has acted in such a way as to create a
substantial risk of serious bodily harm to another, or has
engaged in extreme destruction of property; and that there
is a reasonable probability that this conduct will be
repeated. Previous episodes of dangerousness to others,
when applicable, may be considered when determining
reasonable probability of future dangerous conduct. Clear,
cogent, and convincing evidence that an individual has
committed a homicide in the relevant past is prima facie
evidence of dangerousness to others.

Id. By requiring the above be shown, our law attempts to guard against overuse of

and erroneous commitment.3 However, the law cannot have its intended effect

without full due process protections in place. Overuse of involuntary commitment is

concerning for both the person being committed unnecessarily against their will and

for our state. An overreliance on institutional treatment is generally more expensive

and less effective than community-based alternatives. See N.C. Dep’t of Health &

Hum. Servs., Strategic Plan for Improvement of Behavioral Health Services 5, 87-88

(Jan. 31, 2018). https://medicaid.ncdhhs.gov/ media/3907/download. North Carolina

3 Reports indicate that in the last decade involuntary commitment use has increased
by ninety-one percent in North Carolina. Taylor Knopf, NC didn’t track the data on mental
health commitments, so some advocates did it instead, North Carolina Health News (Dec. 21,
2020),https://www.northcarolinahealthnews.org/2020/12/21/nc-didnt-track-the-data-on-
mental-health-commitments-so-some-advocates-did-it-instead/.
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data also shows that certain groups are more likely to be subjected to care in

psychiatric hospitals, namely males and African Americans, and this likely correlates

to their limited access to community-based services. See Tech. Assistance

Collaborative, An Assessment of the North Carolina Department of Health and

Human Services’ System of Services and Supports for Individuals with Disabilities:

Submitted to the North Carolina Department of Health and Human Services 93 (Apr.

30, 2021), https://www.ncdhhs.gov/media/12607 /download? attachment. But a lack

of access to community-based services should not render involuntary psychiatric

hospitalization the only available form of treatment. Thus, ensuring that appropriate

due process protections exist in involuntary commitment proceedings is paramount

to guaranteeing that only those who truly require hospitalization are subjected to it

against their will.

¶ 48 Therefore, I would hold that in civil involuntary commitment proceedings in

which a petitioner fails to appear, a trial judge cannot put on the case for them,

eliciting and then evaluating all the evidence. By doing so the trial court inevitably

commingles the separate and distinct functions of prosecutor and neutral

decisionmaker and denies the respondent in the proceeding important procedural due

process guarantees that have long been understood to be a vital element of our

adversarial system of justice.

Justices HUDSON and MORGAN join in this dissenting opinion.