in the Supreme Court on 6 March 2019.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
813 S.E.2d 630 (2018), vacating an order entered on 5 January
2017 by Judge Dan Nagle in District Court, Wake County.
H. Stein, Attorney General, by Robert T. Broughton, Assistant
Attorney General, for the State, petitioner-appellant.
Gerding, Appellate Defender, by Wyatt Orsbon, Assistant
Appellate Defender, for respondent-appellee.
case is before us pursuant to the State's petition for
discretionary reviewof the Court of Appeals' decision which
held that "in cases where a respondent [who is
involuntarily committed to a State health facility] does not
receive an examination by a second physician as mandated by
N.C. Gen. Stat. § 122C-266(a), the respondent is not
required to make a showing of prejudice resulting from the
statutory violation in order to have the trial court's
order authorizing her continued commitment vacated."
In re E.D., __ N.C.App. __, __, 813 S.E.2d 630, 634
(2018). We now review: (1) whether "the Court of Appeals
erred in concluding that N.C. Gen. Stat. § 122C-266(a)
was the type of statutory mandate for which the right to
appellate review is automatically preserved regardless of a
failure to object in the trial court"; and (2) whether
"the Court of Appeals erred in concluding that appellate
relief is automatically merited upon the showing of a
violation of N.C. Gen. Stat. § 122C-266(a)."
Because the Court of Appeals erred in concluding that N.C.
G.S. § 122C-266(a) imposes a statutory mandate that
automatically preserves violation of that subsection for
appellate review-and because respondent did not otherwise
preserve her argument alleging the violation by objecting on
that basis at the hearing on her involuntary commitment-we
reverse the Court of Appeals' decision without deciding
whether prejudice must be shown to obtain relief on appeal.
Factual and Procedural Background
facts of this case begin on 26 December 2016 when
respondent's sister filed an affidavit and petition for
involuntary commitment in the District Court in Wake County
requesting that respondent be taken into custody.
affidavit respondent's sister swore that respondent was
mentally ill, was a danger to herself or others, was in need
of treatment for her mental illness in order to prevent
further disability and deterioration that would predictably
result in dangerousness, and was a substance abuser who was
dangerous to herself or others. In support of these
assertions, respondent's sister swore to the following
facts: (1) respondent was suicidal; (2) respondent attempted
to jump out of a moving vehicle on Christmas Eve; (3)
respondent threatened to kill her sister, her niece, and her
mother when respondent's sister turned out a light in her
own home and moved eggs in the refrigerator; (4) respondent
has thrown knives, computers, and chairs at her sister; (5)
respondent has been diagnosed with bipolar I disorder with
manic, psychotic features; (6) respondent has abused
prescription drugs and attempted to break down a bathroom
door when she was intoxicated after drinking liquor; and (7)
respondent threatened to "beat the skin off" her
p.m. on the same day that respondent's sister filed the
affidavit and petition, a magistrate found that respondent
was mentally ill, was a danger to herself or others, was in
need of treatment in order to prevent further disability and
deterioration that would predictably result in dangerousness,
and was a substance abuser who was dangerous to herself or
others. Based on these findings, the magistrate ordered that
law enforcement take the respondent into custody for
examination by a physician or eligible psychologist within
twenty-four hours of issuance of the order. Respondent was
taken into custody by Raleigh police at 8:00 p.m., and she
was transported to UNC Hospital in Chapel Hill, North
Carolina, at 8:30 p.m.
December at 1:30 p.m., respondent received her first
examination by a physician as required by law. The examining
physician opined that respondent was mentally ill, was a
danger to herself, and was a danger to others. As a result of
these findings, the physician recommended that respondent
should be subject to inpatient commitment for fifteen
same day as her first examination at UNC Hospital, respondent
was transported to UNC Wakebrook Psychiatric Services (UNC
Wakebrook) in Raleigh to begin her inpatient commitment.
After her arrival at UNC Wakebrook, respondent received her
second examination as required by law at 4:45
p.m.; however, during this examination,
respondent was seen by a psychologist. She was not
examined by a physician as required by law. N.C.
G.S. § 122C-266(a) (2017) ("[W]ithin 24 hours of
arrival at a 24-hour facility described in G.S. 122C-252, the
respondent shall be examined by a physician."
(emphasis added)); see also id. § 122C-3(29),
(30a) (Supp. 2018) (defining "physician" and
"psychologist" separately, and stating that a
"physician" is "an individual licensed to
practice medicine in North Carolina under Chapter 90 of the
General Statutes or a licensed medical doctor employed by the
on her evaluation of respondent, the psychologist opined that
respondent was mentally ill, a danger to herself, and a
danger to others. Accordingly, the psychologist recommended
that respondent be subject to inpatient commitment for five
to ten days. Respondent remained in custody at UNC
Wakebrook until the hearing on her involuntary commitment in
the District Court in Wake County on 5 January 2017.
following the hearing, the district court ordered that
respondent be involuntarily committed at UNC Wakebrook for a
period not to exceed thirty days. In its order the court found
that respondent was mentally ill; and was a danger to herself
and others. At no point during the hearing did respondent
raise the issue that her second examination was not conducted
by a physician as required by N.C. G.S. § 122C-266(a).
Respondent filed her notice of appeal on 27 January 2017.
Court of Appeals vacated respondent's involuntary
commitment order. In re E.D., __ N.C.App. at __, 813
S.E.2d at 634. In so doing, the court reached two conclusions
that are pertinent here. First, relying on its own decision
in In re Spencer, the Court of Appeals held that
respondent's argument-that N.C. G.S. § 122C-266(a)
was violated when her second examination was conducted by a
psychologist in lieu of a physician-was preserved for
appellate review even though respondent did not raise the
issue in the district court hearing on her involuntary
commitment. Id. at __, 813 S.E.2d at 632 (citing
In re Spencer, 236 N.C.App. 80, 84-85, 762 S.E.2d
637, 640 (2014), disc. rev. denied, 367 N.C. 811,
767 S.E.2d 529 (2015). Specifically, the Court of Appeals
reasoned that its previous decision in In re Spencer
required it to conclude that N.C. G.S. § 122C-266(a)
places a "statutory mandate" upon the trial court
that renders any violation of that subsection automatically
preserved for appellate review. Id. at __, 813
S.E.2d at 632.
the Court of Appeals relied on its own decision in In re
Barnhill, to hold that the violation of N.C. G.S. §
122C-266(a) entitled respondent to relief without her needing
to show that she was prejudiced by the violation.
Id. at __, 813 S.E.2d at 633 (citing In re
Barnhill, 72 N.C.App. 530, 532, 325 S.E.2d 308, 309
(1985)). In its analysis the Court of Appeals distinguished
the facts here and those of In re Barnhill, from the
facts of In re Spencer, in which a respondent was
required to demonstrate prejudice. Id. at __, 813
S.E.2d at 633-34 (citations omitted). The court reasoned that
In re Spencer is distinct from the situation
presented here because in In re Spencer, the
respondent conceded that he was actually examined by a
physician, id. at __, 813 S.E.2d at 633 ("Here,
respondent concedes that Dr. Saeed's testimony
illustrates that he conducted an examination of respondent on
23 July 2013, the day after he was admitted to Holly Hill
Hospital." (quoting In re Spencer, 236 N.C.App.
at 85, 762 S.E.2d at 640)); however, "no written records
existed documenting the fact that a second physician had
examined the respondent," id. at __, 813 S.E.2d
at 633 (citing In re Spencer, 236 N.C.App. at 84,
762 S.E.2d at 640). The Court of Appeals limited In re
Spencer to its facts by reasoning that
"Spencer cannot be read ...