concurring specially and dissenting.
I agree with the special concurrence of Justice VandeWalle, but I am compelled to make a further statement and observation.
North Dakota Century Code § 25-03.1-19, in part states:
“If, upon completion of the hearing, the court finds that the petition has not been sustained by clear and convincing evidence, it shall deny the petition, terminate the proceeding, and order that the respondent be discharged if he has been hospitalized prior to the hearing.”
In addition, the United States Supreme Court in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 823 (1978), enunciated the rule of law that due process requires that the standard of proof in committing an individual involuntarily must be greater than the preponderance of evidence but need not be “beyond a reasonable doubt” standard, and that the standard of clear and convincing evidence applies. The Court did not even mention the clearly erroneous rule as a contender. Thus by the dictates of the United States Supreme Court, supra, and the statutory provision, the applicable standard for an involuntary commitment is clear and convincing evidence.
The various standards of evidence from the lowest to the highest are: (1) clearly erroneous Rule 52(a), North Dakota Rules of Civil Procedure (supported by evidence), (2) substantial evidence, (3) preponderance of evidence (greater weight of evidence); (4) clear and convincing, and (5) beyond a reasonable doubt. A careful examination of these standards should leave no doubt that the clearly erroneous standard and the clear and convincing standard have very little, if anything, in common, and that Rule 52(a), NDRCivP, as it is normally used, has no application in the instant case. We have said that the clearly erroneous Rule 52(a), NDRCivP, has no application in reviewing decisions of an administrative agency which were governed by the substantial evidence rule and now by the preponderance of evidence rule, Ch. 28-32, North Dakota Century Code. O’Brien v. North Dakota Workmen’s Compensation Bureau, 222 N.W.2d 379 (N.D.1974). For this reason and because the findings of fact in divorce cases need not be supported by clear and convincing evidence, whereas an involuntary commitment does, I see no valid legal reason to discuss Rule 52(a) or how it has been applied in divorce (domestic) cases. I have no problem in applying Rule 52(a) to findings of fact in divorce cases, nor do I have a problem recognizing that findings of fact in many instances are necessary to make a determination unless the facts are not in dispute, but I cannot agree that all determinations in divorce or domestic cases are a finding of fact.
*30Merely because this Court may have loosely labeled or treated certain determinations in domestic cases as findings of fact does not support the legal conclusion that a determination-conclusion of law becomes a valid finding of fact simply because it is labeled or treated as such. A finding of fact and a conclusion of law will remain what they legally are regardless of how they may be labeled or treated by an appellate court. I agree with Justice Vande-Walle that the conclusion of law labeled a finding of fact by Justice Paulson does not make it a finding of fact. As someone said, a rose by any other name is still a rose. Even if it were a finding of fact, Rule 52(a) would not apply.
If the facts in this case were in dispute I could agree that Rule 52(a) would have limited application, but only as to credibility for determining which facts the trial court relied upon in making its determination. Even then we would still be required to determine if the commitment is supported by clear and convincing evidence. This is somewhat comparable to the review of a bench trial conviction. The reviewing court involving a conviction is concerned primarily whether or not there is sufficient evidence upon which the court could have found beyond a reasonable doubt that the defendant was guilty. Similarly, our legal function on review in this instance is to determine if the commitment is supported by clear and convincing evidence. I believe it is and, therefore, I concur, but only in the result.