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D.I. v. Gibson

Supreme Court of Nebraska

August 7, 2015

D.I., APPELLANT AND CROSS-APPELLEE,
v.
WILLIAM R. GIBSON AND TYLYNNNNE BAUER, APPELLEES AND CROSS-APPELLANTS

Appeal from the District Court for Madison County: MARK A. JOHNSON, Judge.

SYLLABUS

1. Habeas Corpus: Appeal and Error. On appeal of a habeas corpus petition, an appellate court reviews the trial court's factual findings for clear error and its conclusions of law de novo.

2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

3. Statutes: Words and Phrases. The general rule is that the word " shall" in a statute is mandatory and inconsistent with the idea of discretion.

4. Statutes: Intent: Words and Phrases. A court will construe the word " shall" as permissive if the spirit and purpose of the legislation requires such a construction.

5. Mental Health: Time. The 7-day time limit for holding a hearing under Neb. Rev. Stat. § 71-1207 (Reissue 2009) is directory, not mandatory.

6. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

Ryan J. Stover, of Stratton, DeLay, Doele, Carlson & Buettner, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, David A. Lopez, and James D. Smith for appellees.

WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 285

[291 Neb. 555] Connolly, J.

SUMMARY

D.I. was taken into custody under the Sex Offender Commitment Act (SOCA)[1] on November 16, 2006. Under § 71-1207, the mental health board " shall" hold a

Page 286

hearing within 7 days after the subject is taken into emergency protective custody. The board did not hold a hearing until December 21. D.I. petitioned for a writ of habeas corpus, claiming that the mental health board did not have jurisdiction because the hearing was untimely. The district court dismissed D.I.'s petition. Because the 7-day time limit in § 71-1207 is directory, not mandatory, we affirm.

BACKGROUND

In 2003, a jury convicted D.I. of sexual assault on a child. The court sentenced D.I. ...


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