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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     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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¶ 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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                                           Earls, J., dissenting



       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.