D.I. v. Gibson

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291 Nebraska reports
D.I. v. GIBSON
Cite as 291 Neb. 554
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
D.I., appellaNt aND cross -appellee ,
v. WIllIam r. GIbsoN aND
tylyNNe bauer , appellees
aND cross -appellaNts .
867 N.W.2d 284
Filed August 7, 2015. 	No. S-14-980.
1. Habeas Corpus: Appeal and Error. On appeal of a habeas corpus peti-
tion, 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.
Appeal from the District Court for Madison County: mark
a. JohNsoN, Judge. Affirmed.
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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:31 AM CST

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D.I. v. GIBSON
Cite as 291 Neb. 554
WrIGht, 	coNNolly, 	mccormack , 	mIller-lermaN, 	and
cassel , JJ.
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 hearing
within 7 days after the subject is taken into emergency protec-
tive 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 peti-
tion. 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. to 5 years’ imprisonment.
Shortly before D.I. finished his sentence, the Douglas
County Attorney filed a petition with the Mental Health Board
of the Fourth Judicial District (Board) alleging that D.I. was
a dangerous sex offender under the SOCA. The Board issued
a warrant directing the Department of Correctional Services
to hold D.I. in custody until the commitment hearing. Under
the warrant, D.I. remained at the Omaha Correctional Center
after serving the last day of his sentence on November
16, 2006.
On December 21, 2006, the Board held a commitment hear-
ing and determined that D.I. was a dangerous sex offender.
The Board placed D.I. in the Department of Health and Human
Services’ custody for inpatient treatment.
In May 2013, D.I. petitioned for a writ of habeas corpus in
the Madison County District Court. He named two employ-
ees of the Norfolk Regional Center as the respondents. As
1 Neb. Rev. Stat. §§ 71-1201 to 71-1226 (Reissue 2009).

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D.I. v. GIBSON
Cite as 291 Neb. 554
relevant here, the petition alleged that the Board’s failure to
hold a hearing within 7 days violated the SOCA and D.I.’s due
process rights.
After the parties filed a joint stipulation of facts, the court
dismissed D.I.’s habeas petition. The court concluded that the
7-day period in § 71-1207 was directory, rather than a manda-
tory condition to D.I.’s lawful commitment.
ASSIGNMENTS OF ERROR
D.I. assigns that the court erred by dismissing his petition
for a writ of habeas corpus.
On cross-appeal, the respondents assign that the court erred
by not dismissing the petition on the ground that D.I. had an
adequate remedy under the SOCA.
STANDARD OF REVIEW
[1] 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
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.3
ANALYSIS
appeal
D.I. argues that the Board’s failure to hold a hearing within
7 days is a “jurisdictional defect” that makes the December
2006 commitment order void.4 Under the SOCA, anyone who
believes that another person is a dangerous sex offender can
alert the county attorney of that belief.5 If the county attor-
ney agrees, he or she files a petition in district court and
may request emergency protective custody.6 The clerk of the
2 Johnson v. Gage, 290 Neb. 136, 858 N.W.2d 837 (2015).
3 In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
4 Brief for appellant at 5.
5 § 71-1205.
6 §§ 71-1205 and 71-1206(2).

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D.I. v. GIBSON
Cite as 291 Neb. 554
district court prepares a summons which, under § 71-1207,
“shall fix a time for the hearing within seven calendar days
after the subject has been taken into emergency protective
custody.” At the hearing before the mental health board, the
State has the burden to prove by clear and convincing evi-
dence that the subject is a dangerous sex offender and that less
restrictive treatment is not appropriate.7
The respondents do not dispute that the hearing was untimely.
But they contend that the 7-day time limit in § 71-1207 is
merely directory and that therefore, the Board’s failure to hold
a timely hearing did not deprive it of jurisdiction. D.I. argues
that the word “shall” in § 71-1207 shows that the time limit
is mandatory.
[3,4] The general rule is that the word “shall” in a statute
is mandatory and inconsistent with the idea of discretion.8
But we construe the word “shall” as permissive if the spirit
and purpose of the legislation requires such a construction.9
No universal test distinguishes mandatory from directory pro-
visions.10 Broadly, provisions that relate to the essence of
the thing to be done are mandatory while provisions for
which compliance is a matter of convenience rather than sub-
stance are directory.11 Put another way, we have been reluctant
to deem provisions mandatory if something less than strict
compliance would not interfere with the statute’s fundamen-
tal purpose.12
We have frequently applied these principles to statutory
time limits. In most cases, we have decided that provisions
7 §§ 71-1208 and 71-1209.
8 E.g., Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007). See Neb.
Rev. Stat. § 49-802 (Reissue 2010).
9 E.g., Troshynski v. Nebraska State Bd. of Pub. Accountancy, 270 Neb. 347,
701 N.W.2d 379 (2005).
10 E.g., id.
11 See State v. Steele, 224 Neb. 476, 399 N.W.2d 267 (1987).
12 See Troshynski v. Nebraska State Bd. of Pub. Accountancy, supra note 9.

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D.I. v. GIBSON
Cite as 291 Neb. 554
specifying the time by which something “shall” be done are
merely directory.13 But we have given “shall” a mandatory
construction if completion of the action within the specified
period was essential to accomplishing a principal purpose of
the law.14
We have not yet addressed whether the 7-day time limit
in § 71-1207 is mandatory or directory. But the respondents
argue that the Nebraska Court of Appeals’ interpretation of a
similar section of the Nebraska Mental Health Commitment
Act (MHCA)15 is persuasive. In In re Interest of E.M.,16 the
mental health board held a hearing and committed E.M. to
inpatient treatment 8 days after law enforcement took him
into custody. A section of the MHCA provided that “‘[n]o per-
son may be held in custody pending the hearing for a period
exceeding seven days . . . .’”17 E.M. argued that the board
should have dismissed the proceeding because the hearing
was untimely.
Despite reasoning that “the phrase ‘no person may be held
in custody’ is comparable in meaning and effect to saying that
the State ‘shall not hold a person in custody,’” the Court of
13 See, State v. $1,947, 255 Neb. 290, 583 N.W.2d 611 (1998); In re Interest
of Brandy M. et al., 250 Neb. 510, 550 N.W.2d 17 (1996); In re Interest
of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990); State v. Steele, supra
note 11; In re Interest of S.S.L., 219 Neb. 911, 367 N.W.2d 710 (1985);
Hartman v. Glenwood Tel. Membership Corp., 197 Neb. 359, 249 N.W.2d
468 (1977); Local Union No. 647 v. City of Grand Island, 196 Neb. 693,
244 N.W.2d 515 (1976). See, also, Glantz v. Daniel, 21 Neb. App. 89, 837
N.W.2d 563 (2013); Hendrix v. Sivick, 19 Neb. App. 140, 803 N.W.2d 525
(2011); Thomsen v. Nebraska Dept. of Motor Vehicles, 16 Neb. App. 44,
741 N.W.2d 682 (2007); Forgey v. Nebraska Dept. of Motor Vehicles, 15
Neb. App. 191, 724 N.W.2d 828 (2006); Randall v. Department of Motor
Vehicles, 10 Neb. App. 469, 632 N.W.2d 799 (2001).
14 State on behalf of Minter v. Jensen, 259 Neb. 275, 609 N.W.2d 362 (2000).
15 Neb. Rev. Stat. §§ 71-901 to 71-963 (Reissue 2009 & Cum. Supp. 2014).
16 In re Interest of E.M., 13 Neb. App. 287, 691 N.W.2d 550 (2005).
17 Id. at 293, 691 N.W.2d at 556, quoting Neb. Rev. Stat. § 83-1045.02
(Reissue 1999) (now found at § 71-932).

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Cite as 291 Neb. 554
Appeals concluded that the prohibition was directory.18 The
court stated that the main objective of the statute was to ensure
the effectiveness and viability of outpatient treatment for a
mentally ill dangerous person. The 7-day period was not essen-
tial to this objective because it was only designed to ensure
order and promptness.
The court was also persuaded by the difficulty of remedy-
ing tardiness:
[I]t is apparent that the time specification in this case
should be considered directory and not mandatory pre-
cisely because there is no effective sanction for non-
compliance. Were we to accept E.M.’s position that the
proceedings should have been dismissed, there is nothing
whatsoever which would have prevented the board from
dismissing the proceeding and, at the same time, issuing
a new warrant and ordering that E.M. be taken back into
custody immediately.19
And, the court noted, E.M. did not explain how the 1-day delay
prejudiced him.
D.I. relies on two other cases to show that he is entitled
to relief. First, he cites Davis v. Settle,20 which involved
a section of the MHCA that, similar to § 71-1207, said
that the summons “‘shall fix a time for the hearing within
seven days after the subject has been taken into protective
custody.’”21 The mental health board took custody of the peti-
tioner on September 13, 2001, but did not hold a hearing until
September 25. On appeal, we concluded that the petitioner’s
claim for habeas relief was moot because the respondents no
longer had custody of him. But we noted that under the order
giving custody of the petitioner to the mental health board,
18 Id. at 294, 691 N.W.2d at 557.
19 Id. at 295, 691 N.W.2d at 558.
20 Davis v. Settle, 266 Neb. 232, 665 N.W.2d 6 (2003).
21 Id. at 235, 665 N.W.2d at 9, quoting Neb. Rev. Stat. § 83-1027 (Reissue
1999) (now found at § 71-923).

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D.I. v. GIBSON
Cite as 291 Neb. 554
the board “did not have authority to retain custody” after the
seventh day.22
D.I. also cites the Court of Appeals’ opinion in Condoluci
v. State.23 There, the sheriff took the petitioner into custody,
purportedly under the SOCA, but the mental health board
never held a hearing. The petitioner applied for a writ of
habeas corpus, and the district court dismissed the application.
The Court of Appeals held that the district court should have
issued the writ because, if true, the petitioner’s allegations
showed that his detention was “quite clearly ‘without any
legal authority.’”24
Here, 	the 	critical 	issue 	is 	the 	fundamental 	purpose 	of
the SOCA and its relationship with the 7-day time limit in
§ 71-1207. The Legislature’s intent is expressed in § 71-1202,
which states:
The purpose of the [SOCA] is to provide for the court-
ordered treatment of sex offenders who have completed
their sentences but continue to pose a threat of harm to
others. It is the public policy of the State of Nebraska
that dangerous sex offenders be encouraged to obtain vol-
untary treatment. If voluntary treatment is not obtained,
such persons shall be subject to involuntary custody and
treatment only after mental health board proceedings as
provided by the [SOCA]. Such persons shall be subjected
to emergency protective custody under limited conditions
and for a limited period of time.
D.I. and the respondents disagree about the breadth of the
SOCA’s purpose. The respondents argue that the paramount
goal of the SOCA is to protect the public from dangerous
sex offenders. D.I. concedes that the Legislature intended to
protect the public but argues that this purpose is coequal with
protecting a sex offender’s liberty.
22 Id. at 236, 665 N.W.2d at 10.
23 Condoluci v. State, 18 Neb. App. 112, 775 N.W.2d 196 (2009).
24 Id. at 115, 775 N.W.2d at 198, quoting Neb. Rev. Stat. § 29-2801 (Reissue
2008).

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D.I. v. GIBSON
Cite as 291 Neb. 554
We conclude that the respondents’ reading most closely
reflects the Legislature’s intent. Although the SOCA has
several aims, we have said that its “primary purpose” is to
protect the public from sex offenders who continue to pose
a threat.25
So understood, the fundamental purpose of the SOCA
rebuts the presumption that the word “shall” in § 71-1207 cre-
ates a mandatory duty. We have noted our reluctance to find
statutory time limits mandatory if they are not central to the
purpose of the statute.26 Holding a hearing within 7 days helps
ensure that the basis for the mental health board’s custody
over the subject is adjudicated in a timely and orderly man-
ner. A timely hearing is important, but we cannot say that it
is necessary to accomplish the SOCA’s fundamental purpose,
such that the untimeliness of the hearing deprives the board
of jurisdiction.
As was the Court of Appeals in In re Interest of E.M., we
are also impressed by the difficulty of remedying an untimely
hearing. In D.I.’s petition for a writ of habeas corpus, he
prayed for his “immediate release from the Norfolk Regional
Center with no ongoing obligation for treatment.” D.I. did not
say how long he expected to be released. To the extent that he
believed that he should forever be free of the Board’s juris-
diction, because the 2006 hearing was untimely, the SOCA’s
purpose of protecting the public makes such a result unaccept-
able. But if D.I. is not so immune—and he conceded at oral
argument that he is not—it appears that the county attorney
could simply file another petition and request emergency pro-
tective custody.27 While the absence of an express remedy is
not the sine qua non of our inquiry,28 it is hard to imagine a
remedy in this case that would not be futile.
25 See In re Interest of S.C., 283 Neb. 294, 301, 810 N.W.2d 699, 705 (2012).
26 State v. $1,947, supra note 13. See, also, State v. Steele, supra note 11.
27 See §§ 71-1205 and 71-1206(2).
28 See State on behalf of Minter v. Jensen, supra note 14.

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D.I. v. GIBSON
Cite as 291 Neb. 554
We are not persuaded by the cases that D.I. cites. In Davis
v. Settle, we expressly “decline[d] to address the merits” of the
petitioner’s claim for habeas relief.29 Our statement about the
mental health board’s authority was dicta. The mental health
board in Condoluci v. State apparently never held a hearing at
all.30 Here, the Board held an untimely hearing.
[5] In conclusion, the 7-day time limit for holding a hear-
ing under § 71-1207 is directory, not mandatory. D.I. did
not show that the delay prejudiced him. He is not entitled
to immediate release from his commitment at the Norfolk
Regional Center.
cross -appeal
[6] Because we conclude that the district court correctly
decided that the 7-day time limit in § 71-1207 is directory, we
do not reach the respondents’ cross-appeal. An appellate court
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it.31
CONCLUSION
We conclude that the 7-day time limit for holding a hearing
under § 71-1207 is directory. So, the untimeliness of the 2006
hearing did not deprive the Board of jurisdiction. We therefore
affirm the order dismissing D.I.’s petition for habeas relief.
affIrmeD.
heavIcaN, C.J., and stephaN, J., not participating.
29 Davis v. Settle, supra note 20, 266 Neb. at 236, 665 N.W.2d at 9.
30 See Condoluci v. State, supra note 23.
31 Lang v. Howard County, 287 Neb. 66, 840 N.W.2d 876 (2013).