(dissenting).
{35} I respectfully dissent. I agree that the issues in this case are not moot, but I believe the statutory provisions at issue represent the clear judgment of the Legislature that Petitioner was entitled to release when he was not provided a hearing within seven days. NMSA 1978, §§ 43-l-10(F), -11(A) (1989). Thus, I believe that the relevant statutory provisions compel us to reverse the Court of Appeals and remand this case to the district court with directions to dismiss the district court’s order.
{36} Petitioner has been released from the Las Vegas Medical Center, and we need not restore to him through the mandate of this court the liberty he sought from the district court. Indeed, we cannot restore to him the liberty of which he was deprived. Nevertheless, he represents a class of citizens for whose interests in liberty the Legislature has made specific provision. For other members of that class, the issues raised in this appeal remain undecided. There is the distinct possibility that those issues may recur but evade review. For these reasons, for these citizens, we ought to resolve the issues raised in this case. The Court of Appeals was right to address the issues raised, rather than to dismiss the appeal as moot. See State v. Bunnell (In re Bunnell), 100 N.M. 242, 244, 668 P.2d 1119, 1121 (Ct.App.1983).
{37} Sections 43-l-10(F) and 43-1-11(A) are straightforward. The first provision, concerning emergency mental health evaluation and care, states that “[u]pon arrival at an evaluation facility, the proposed client shall be informed orally and in writing by the evaluation facility of ... his right to a hearing within seven days____” The second provision, concerning the commitment of adults for a thirty-day period, begins “[e]very adult client involuntarily admitted to an evaluation facility pursuant to Section 43-1-10 NMSA 1978 has the right to a hearing within seven days of admission unless waived after consultation with counsel.”
{38} The Court of Appeals attempted to construe these provisions, with reference to our cases, as either jurisdictional requirements or mandatory preconditions. The Court of Appeals concluded that the statutes quoted above “do[ ] not affect the essential power of the district court to adjudicate the issue before it.” N.M. Dep’t of Health v. Compton, 2000-NMCA-078 ¶15, 129 N.M. 474, 10 P.3d 153. I respectfully submit that the Court of Appeals addressed the wrong issue. The jurisdictional-mandatory distinction is not applicable to instances of involuntary confinement for mental health purposes. The issue in such cases is not whether the failure to comply with the time limits deprives the district courts of jurisdiction. Rather, the issue is whether the time limits provide a protection or protections that the class of citizens the Legislature was attempting to protect can enforce in the district court. I see no reason to construe the text of the statutes to limit the protection they seem intended to provide.
{39} In addition to the text of the statutes, our case law indicates that the statutes do not contemplate routine continuances. In Bunnell, 100 N.M. at 244, 668 P.2d at 1121, the court reasoned that Section 43-l-ll(A) “does not provide for postponement but instead furnishes a means by which an individual may waive his right to challenge his detention.” The court ultimately held that the seven-day hearing mandated by Sections 43-l-10(F) and 43-l-ll(A) could be continued, but only “when counsel [for the person being committed] establishes that he has not had sufficient time to prepare his client’s case.” 100 N.M. at 245, 668 P.2d at 1122. Moreover, the court noted that “[i]f the trial court grants such a continuance, it must also hold an immediate preliminary hearing to determine whether the State can present sufficient evidence to justify holding the individual beyond the seven-day emergency period.” Id.
{40} The majority construes Bunnell as authority for its conclusion that the Legislature has been silent “on the question of whether the district court may postpone the hearing beyond the seven-day requirement.” Majority Opinion ¶ 18. I respectfully disagree. I believe Bunnell supports the view that a continuance is only appropriate when: (1) it is requested by the individual being committed, and (2) it serves that person’s interests; that is, when it does not violate his or her due process rights. It seems to me that Bunnell understood Section 43-l-ll(A) to preclude postponement of the seven-day hearing by the State but to permit waiver by the individual being committed.
{41} Due to the clarity of our statutes, we need not decide whether the delay of fourteen calendar days between Compton’s admission and his hearing violated his constitutional rights. Had the Legislature intended a “good cause” exception to the seven-day time frame of the statutes in question, it could easily have said so. The addition of the simple phrase “except for good cause shown” would have sufficed. Alternatively, the Legislature could have provided for a hearing “within a reasonable period of time.” The Legislature took neither of these approaches. Rather, the Legislature has made unnecessary an inquiry into the length of time a person can be involuntarily confined in a mental institution without a hearing. The Legislature has defined the process that is due, Petitioner has not argued that the Legislature defined his rights too narrowly, and the Court need not address whether the Legislature has defined his rights too broadly.
{42} I conclude that the Legislature has provided a mandatory seven-day time limit for a hearing in involuntary commitment proceedings, although the right may be waived. I also conclude that the Legislature has provided an express remedy for violations of the statutory provisions at issue. NMSA 1978, § 43-1-23 (1978) states:
Any client who believes that his rights, as established by this code or by the constitution of the United States or of New Mexico, have been violated shall have a right to petition the court for redress. The client shall be represented by counsel. The court shall grant relief as is appropriate, subject to the provisions of the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978].
{43} The Court of Appeals noted that “because there is no indication in the record that [Compton] sought to be released on February 25, 1999, or objected to the continuance of his seven-day hearing until the hearing was held seven days later, the district court was unable to grant him dismissal as a remedy.” Compton, 2000-NMCA-078, ¶20, 129 N.M. 474, 10 P.3d 153. The emphasis, however, should not be on the actions taken by individuals to enforce their rights, but rather on ensuring that those rights are not violated in the first place. The waiver provision of Section 43-l-ll(A) states that the right to a hearing can be “waived after consultation with counsel.” This indicates that waiver is to be an affirmative act. The burden rests with the Department of Health and with the district court to ensure that the hearing takes place within the time limit proscribed by the Legislature. If the individual’s rights are nonetheless violated, his or her objection becomes a practical necessity. The practical necessity does not justify treating the absence of an objection as a waiver of any protection the Legislature intended the hearing to ensure and the court to enforce.
{44} The statute speaks of “appropriate” relief being granted. The forgoing analysis leads me to conclude that the only appropriate relief for one who has not been given a mandatory hearing within seven days of his or her commitment is immediate release from the facility. The individual is certainly subject to future confinement, but only if one of the conditions of NMSA 1978, § 43-1-10(A) (1989) is met. Furthermore, the determination that the individual meets one of these conditions must be based on evidence of the person’s mental health status at the time of dismissal. To allow re-confinement based on previous evaluations and evidence would render the individual’s release meaningless.
{45} The majority suggests that the remedy of dismissal would not serve the public health purposes of involuntary medical confinement. Majority Opinion ¶ 31. I believe that the Legislature has taken into account those purposes in crafting the statutory scheme of which Sections 43-l-10(F) and 43-1-11(A) are part. Ultimately, the nature of the right protected by this statutory scheme compels dismissal when the Department of Health has not provided the district court the necessary evidence within the time limit set by the Legislature. As our courts have said on other occasions in a somewhat different context, legislative therapy, rather than judicial surgery, is required. E.g., Amaco Prod. Co. v. N.M. Taxation & Revenue Dep’t, 118 N.M. 72, 76, 878 P.2d 1021, 1025 (Ct.App. 1994).
{46} For the foregoing reasons, I respectfully dissent.
I CONCUR: GENE E. FRANCHINI, Justice.