Civil Commitment of Sexual Psychopathic Personalities and ...
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<strong>Civil</strong> <strong>Commitment</strong> <strong>of</strong> <strong>Sexual</strong><br />
<strong>Psychopathic</strong> <strong>Personalities</strong> <strong>and</strong> <strong>Sexual</strong>ly<br />
Dangerous Persons in Minnesota<br />
Legal Overview<br />
JUNE 2010<br />
By<br />
John L. Kirwin<br />
Assistant Hennepin County Attorney<br />
Hennepin County Attorney’s Office<br />
Minneapolis, Minnesota
TABLE OF CONTENTS<br />
i<br />
Page<br />
I. PSYCHOPATHIC PERSONALITY COMMITMENTS....................................................1<br />
A. Development <strong>of</strong> the <strong>Psychopathic</strong> Personality <strong>Commitment</strong> St<strong>and</strong>ard ...................1<br />
B. Habitual Course <strong>of</strong> <strong>Sexual</strong> Misconduct ...................................................................2<br />
1. Remoteness <strong>of</strong> past sexual misconduct; gaps in sexual <strong>of</strong>fenses.................2<br />
2. Frequency <strong>and</strong> similarity <strong>of</strong> sexual misconduct...........................................3<br />
3. Not all acts within habitual pattern must meet harmfulness st<strong>and</strong>ard .........5<br />
4. Convictions not necessary; juvenile acts qualify.........................................6<br />
C. Utter Lack <strong>of</strong> Power to Control <strong>Sexual</strong> Impulses ....................................................6<br />
1. Necessity <strong>of</strong> expert testimony <strong>and</strong> court findings........................................6<br />
2. “Mental illness,” lack <strong>of</strong> criminal responsibility, <strong>and</strong> “psychopathy” not<br />
necessary......................................................................................................8<br />
3. Blodgett factors ............................................................................................9<br />
4. Planning/grooming does not preclude inability to control.........................11<br />
5. Re<strong>of</strong>fense despite intent not to...................................................................12<br />
6. Lack <strong>of</strong> insight showing inability to control..............................................13<br />
7. Need not be out <strong>of</strong> control all the time ......................................................13<br />
8. Misconduct despite consequences showing lack <strong>of</strong> control ......................15<br />
II. SEXUALLY DANGEROUS PERSON COMMITMENTS .............................................17<br />
A. Enactment <strong>of</strong> <strong>Sexual</strong>ly Dangerous Person <strong>Commitment</strong> Law...............................17<br />
B. Course <strong>of</strong> Harmful <strong>Sexual</strong> Conduct.......................................................................18<br />
C. Mental Disorder .....................................................................................................21<br />
1. The statutory requirement..........................................................................21
2. Inability to adequately control ...................................................................23<br />
III. COMMITMENT ISSUES UNDER BOTH STATUTES..................................................26<br />
A. Harmful Nature <strong>of</strong> <strong>Sexual</strong> Misconduct..................................................................26<br />
1. SPP Statute.................................................................................................26<br />
a. Rickmyer st<strong>and</strong>ard for harmfulness................................................26<br />
b. Conduct without completed sexual assault: HIV status,<br />
exhibitionism, exposing, kidnapping .............................................27<br />
c. Violence; likely harm greater than normal? Robb <strong>and</strong> Preston....28<br />
d. What does “violence” mean, <strong>and</strong> how much harmfulness is<br />
necessary, post-Robb <strong>and</strong> Preston?................................................31<br />
e. Discussion <strong>of</strong> violence <strong>and</strong> harmfulness in cases preceding<br />
Robb <strong>and</strong> Preston...........................................................................34<br />
2. SDP statute—what is “sexual” conduct, st<strong>and</strong>ard for harmfulness, <strong>and</strong><br />
“rebuttable presumption” <strong>of</strong> harmfulness. .................................................38<br />
3. SPP <strong>and</strong> SDP Laws: Injury to past victims not necessary ........................43<br />
B. Likelihood <strong>of</strong> Harmful <strong>Sexual</strong> Conduct.................................................................45<br />
1. Degree <strong>of</strong> likelihood ..................................................................................45<br />
2. Assessment <strong>of</strong> likelihood <strong>of</strong> sexual re<strong>of</strong>fense............................................45<br />
C. Least Restrictive Alternative..................................................................................51<br />
D. Treatability <strong>and</strong> Availability <strong>of</strong> Treatment; Self-Incrimination In Treatment.......55<br />
IV. PROCEDURAL ISSUES ..................................................................................................58<br />
A. Department <strong>of</strong> Corrections Referral.......................................................................58<br />
B. Criminal Procedures Not Applicable.....................................................................58<br />
C. Petition ...................................................................................................................59<br />
D. Parties to Proceeding..............................................................................................60<br />
ii
E. Jurisdiction <strong>and</strong> Venue...........................................................................................60<br />
F. Dual DOC/DHS <strong>Commitment</strong> ...............................................................................62<br />
G. Prehearing Issues ...................................................................................................62<br />
H. Privilege Against Self-Incrimination .....................................................................64<br />
I. Pretrial Hold Orders...............................................................................................64<br />
J. Discovery; Obtaining <strong>and</strong> Using Records..............................................................66<br />
K. Independent Medical Examinations <strong>of</strong> Victims.....................................................69<br />
L. Examiners <strong>and</strong> Expert Witnesses...........................................................................69<br />
M. Attorney for Proposed Patient................................................................................73<br />
N. Previous Plea Agreements .....................................................................................73<br />
O. Collateral Estoppel Effect <strong>of</strong> Previous <strong>Commitment</strong> Proceedings <strong>and</strong><br />
Previous Criminal Proceedings..............................................................................74<br />
P. Deadlines for Hearing............................................................................................75<br />
Q. Trial........................................................................................................................76<br />
R. Evidentiary Issues ..................................................................................................77<br />
S. St<strong>and</strong>ard <strong>of</strong> Pro<strong>of</strong>; Evaluation <strong>of</strong> Evidence ...........................................................83<br />
T. Findings..................................................................................................................84<br />
U. Stipulation For <strong>Commitment</strong> .................................................................................85<br />
V. Treatment Report And Review Hearing ................................................................86<br />
W. Appeal ....................................................................................................................89<br />
X. State Habeas Corpus ..............................................................................................95<br />
V. CONSTITUTIONAL CHALLENGES..............................................................................97<br />
A. PP Law...................................................................................................................97<br />
1. Pearson v. Probate Court—Vagueness And Equal Protection .................97<br />
iii
2. In re Blodgett—Substantive Due Process And Equal Protection ..............98<br />
3. Validity <strong>of</strong> SPP law following Kansas v. Crane........................................99<br />
4. Double Jeopardy Challenges....................................................................100<br />
B. SDP Law ..............................................................................................................100<br />
1. Linehan III—Substantive Due Process, Equal Protection, Ex Post<br />
Facto And Double Jeopardy.....................................................................100<br />
2. U.S. Supreme Court decision in Kansas v. Hendricks—Substantive<br />
Due Process, Ex Post Facto And Double Jeopardy .................................102<br />
3. Linehan IV—Substantive Due Process, Ex Post Facto And Double<br />
Jeopardy In Light Of Hendricks ..............................................................105<br />
4. Disposition <strong>of</strong> other cases, after Linehan IV............................................106<br />
5. U.S. Supreme Court decision in Kansas v. Crane—Inability To<br />
Control .....................................................................................................107<br />
6. Cases Addressing Minnesota’s Laws Following Crane ..........................108<br />
7. Other constitutional issues under SDP law..............................................110<br />
C. Constitutional Challenges Applicable To Both Statutes......................................111<br />
1. St<strong>and</strong>ards <strong>of</strong> review <strong>and</strong> procedural requirements for constitutional<br />
issues........................................................................................................111<br />
2. Rulings on particular constitutional issues ..............................................112<br />
iv
I. PSYCHOPATHIC PERSONALITY COMMITMENTS.<br />
A. Development Of The <strong>Psychopathic</strong> Personality <strong>Commitment</strong> St<strong>and</strong>ard.<br />
In the 1939 psychopathic personality (“PP”) law, the Legislature defined the term<br />
“psychopathic personality” as<br />
the existence in any person <strong>of</strong> such conditions <strong>of</strong> emotional instability, or<br />
impulsiveness <strong>of</strong> behavior, or lack <strong>of</strong> customary st<strong>and</strong>ards <strong>of</strong> good judgment, or<br />
failure to appreciate the consequences <strong>of</strong> personal acts, or a combination <strong>of</strong> any<br />
such conditions, as to render such person irresponsible for personal conduct with<br />
respect to sexual matters <strong>and</strong> thereby dangerous to other persons. 1<br />
Later that year, in a vagueness challenge to the PP law, the Minnesota Supreme Court in State ex<br />
rel Pearson v. Probate Court 2 gave the statute a narrowing interpretation, holding that the law<br />
would apply only to<br />
those persons who, by a [1] habitual course <strong>of</strong> misconduct in sexual matters, have<br />
evidenced an [2] utter lack <strong>of</strong> power to control their sexual impulses <strong>and</strong> who, as a<br />
result, are [3] likely to attack or otherwise inflict injury, loss pain or other evil on<br />
the object <strong>of</strong> their uncontrolled <strong>and</strong> uncontrollable desire.<br />
Then, in 1994, along with the adoption <strong>of</strong> the “sexually dangerous person” statute<br />
described below, the Legislature recodified the PP law, renaming it “sexual psychopathic<br />
personality” (“SPP”) law <strong>and</strong> incorporating the Pearson definition:<br />
“<strong>Sexual</strong> psychopathic personality” means the existence in any person <strong>of</strong> such<br />
conditions <strong>of</strong> emotional instability, or impulsiveness <strong>of</strong> behavior, or lack <strong>of</strong><br />
customary st<strong>and</strong>ards <strong>of</strong> good judgment, or failure to appreciate the consequences<br />
<strong>of</strong> personal acts, or a combination <strong>of</strong> any <strong>of</strong> these conditions, which render the<br />
person irresponsible for personal conduct with respect to sexual matters, if the<br />
person has evidenced by a [1] habitual course <strong>of</strong> misconduct in sexual matters, an<br />
[2] utter lack <strong>of</strong> power to control the person’s sexual impulses <strong>and</strong>, as a result, is<br />
[3] dangerous to other persons. 3<br />
The Legislature expressly stated that this was to be a continuation <strong>of</strong>, <strong>and</strong> not a change in, the<br />
prior law. 4<br />
1<br />
1939 Minn. Laws ch. 369, § 1.<br />
2<br />
State ex rel Pearson v. Probate Court, 287 N.W. 297, 302 (Minn. 1939), aff’d, 309 U.S. 270,<br />
277 (1940).<br />
3<br />
Minn. Stat. § 253B.02, subd. 18b (2009).<br />
4<br />
1994 Minn. Laws, 1st Spec. Sess., art. 1, § 5(a).<br />
1
B. Habitual Course Of <strong>Sexual</strong> Misconduct.<br />
The SPP law <strong>and</strong> the Pearson st<strong>and</strong>ard require that the person have engaged in a<br />
“habitual course <strong>of</strong> misconduct in sexual matters.” 5 This st<strong>and</strong>ard raises two inquiries that must<br />
be addressed to support a commitment. First, is the nature <strong>of</strong> the sexual misconduct sufficiently<br />
harmful to justify commitment? Because the st<strong>and</strong>ard for harmfulness is related to the st<strong>and</strong>ard<br />
in the <strong>Sexual</strong>ly Dangerous Person (“SDP”) law, it will be discussed in section III.A., below. The<br />
second issue under the first SPP element is whether the person’s sexual misconduct is “habitual.”<br />
1. Remoteness <strong>of</strong> past sexual misconduct; gaps in sexual <strong>of</strong>fenses.<br />
Proposed patients have challenged the allegation that their sexual misconduct was<br />
“habitual,” arguing that it must have occurred recently. In Linehan I, 6 the supreme court found<br />
the habitual course requirement satisfied even though the last sex <strong>of</strong>fense occurred in 1975 <strong>and</strong><br />
the petition was filed in 1992. The appellate court in the same case reasoned that the gap in time<br />
was relevant in determining the likelihood <strong>of</strong> future harm, not whether the course <strong>of</strong> sexual<br />
misconduct was habitual. 7 Moreover, the court discounted Linehan’s lack <strong>of</strong> sexual misconduct<br />
while imprisoned because “good behavior in the artificial atmosphere <strong>of</strong> a prison or hospital is<br />
not determinative.” 8<br />
A number <strong>of</strong> other decisions have ruled that the remoteness <strong>of</strong> the conduct does not<br />
preclude commitment. In Linehan III, the court <strong>of</strong> appeals observed that the SPP law “allows the<br />
state to establish a ‘habitual course <strong>of</strong> misconduct in sexual matters’ by evidence <strong>of</strong> remote acts<br />
<strong>of</strong> misconduct.” 9 Although addressing the remoteness <strong>of</strong> the conduct in the context <strong>of</strong> the<br />
likelihood <strong>of</strong> future dangerous behavior, the court <strong>of</strong> appeals in In re Pirkl 10 approvingly referred<br />
to the trial court’s finding “rejecting Pirkl’s argument as to the lack <strong>of</strong> recency <strong>of</strong> his sexual<br />
assaults, noting that he has been in a prison the last nine years <strong>and</strong> has not had the opportunity to<br />
commit sexual assaults.” 11 A large gap <strong>of</strong> time between the most recent <strong>of</strong>fense <strong>and</strong> the petition<br />
does not preclude a determination that the actions were habitual. 12 In In re Cermak, 13 one <strong>of</strong> the<br />
examiners posited that, while the respondent had engaged in a course <strong>of</strong> sexual misconduct many<br />
years earlier, he had not had the opportunity to show that his conduct could change so it could<br />
5 Minn. Stat. § 253B.02, subd. 18b (2009); Pearson, 287 N.W. at 302.<br />
6 In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).<br />
7 In re Linehan, 503 N.W.2d 142, 147 (Minn. Ct App. 1993), rev’d, 518 N.W.2d 609 (Minn.<br />
1994).<br />
8 Id.<br />
9 In re Linehan, 544 N.W.2d 308, 312 (Minn. Ct. App. 1996), aff’d, 557 N.W.2d 171, 185 (Minn.<br />
1996), vacated <strong>and</strong> rem<strong>and</strong>ed, 522 U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn.<br />
1999).<br />
10 In re Pirkl, 531 N.W.2d 902 (Minn. Ct. App. 1995).<br />
11<br />
Id. at 909.<br />
12<br />
In re J.L.D., No. C7-97-1879, 1998 WL 147859, at *1 (Minn. Ct. App. May 28, 1998)<br />
(unpublished).<br />
13<br />
In re Cermak, No. A09-1080, 2009 WL 3736196, at *5 (Minn. Ct. App. Nov. 10, 2009)<br />
(unpublished).<br />
2
not be said that the conduct was “habitual.” The trial court <strong>and</strong> court <strong>of</strong> appeals rejected the<br />
argument, saying it “does not change the fact his course <strong>of</strong> harmful sexual conduct was habitual<br />
in the first instance.” 14 Similarly, a large gap in time between the person’s previous <strong>of</strong>fenses <strong>and</strong><br />
his last <strong>of</strong>fense do not prevent all <strong>of</strong> the <strong>of</strong>fenses from being considered a “habitual course” <strong>of</strong><br />
conduct. 15 Likewise, periods <strong>of</strong> time where there is no evidence <strong>of</strong> misconduct but the <strong>of</strong>fender<br />
was confined or on supervised release do not preclude a determination that the actions were<br />
habitual. 16 In In re Sadiki, 17 the court <strong>of</strong> appeals held that, although commitment must rest on<br />
the person’s current condition, the remoteness <strong>of</strong> the conduct does not preclude commitment,<br />
especially when the person has been confined <strong>and</strong> lacked the opportunity to commit additional<br />
<strong>of</strong>fenses. 18 The appellate court later ruled, 19 when reviewing Sadiki’s indeterminate commitment<br />
order, that reliance on past acts is appropriate <strong>and</strong> that the requirement <strong>of</strong> recent conduct in<br />
Minn. Stat. § 253B.07, subd. 2, is not applicable to SPP commitments.<br />
2. Frequency <strong>and</strong> similarity <strong>of</strong> sexual misconduct.<br />
Aside from the remoteness <strong>of</strong> the sexual misconduct, proposed patients have challenged<br />
whether the evidence could satisfy the habitual requirement where there were few instances <strong>of</strong><br />
sexual misconduct. In 1994, in In re Hince, 20 the court <strong>of</strong> appeals held that two rapes, six years<br />
apart, did not constitute a habitual course <strong>of</strong> misconduct. The court referred to the dictionary<br />
definition <strong>of</strong> “habitual as ‘done consistently or repeatedly’ or ‘established by long use.’” But in<br />
a 2009 case, In re Rask, the appellate court upheld a finding <strong>of</strong> “habitual course” apparently<br />
based on only two sexual <strong>of</strong>fenses, four years apart. 21 The court relied on testimony <strong>of</strong> one<br />
examiner that “habitual conduct is ‘repetitive, unfolds in the same behavioral form, <strong>and</strong> is<br />
14 Id.<br />
15 In re Fisher, No. A05-579, 2005 WL 2209079, at *8 (Minn. Ct. App. Sept. 13, 2005)<br />
(unpublished).<br />
16 In re Cox, No. A08-0910, 2009 WL 113397, at *6 (Minn. Ct. App. Jan. 20, 2009), review<br />
denied (Minn. Mar. 31, 2009) (unpublished); In re Gleason, No. C2-97-2194, 1998 WL 218223,<br />
at *1-2 (Minn. Ct. App. May 5,1998) (unpublished); In re Bobo, 376 N.W.2d 429, 432 (Minn.<br />
Ct. App. 1985) (stating “good behavior in the artificial environment <strong>of</strong> a hospital is not<br />
determinative on the issue <strong>of</strong> dangerousness to the public”).<br />
17 In re Sadiki, No. C3-93-1045, 1993 WL 355906, at *2 (Minn. Ct. App. Sept. 14, 1993)<br />
(unpublished), rem<strong>and</strong>ed (Minn. Jan. 24, 1995); aff’d after rem<strong>and</strong>, No. C7-95-419, 1995 WL<br />
311799 (Minn. Ct. App. May 23, 1995).<br />
18 See also In re Patterson, No. C3-95-935, 1995 WL 550898, at *4 (Minn. Ct. App. Sept. 19,<br />
1995) (unpublished) (remoteness <strong>of</strong> the past conduct does not disqualify it from being part <strong>of</strong> the<br />
habitual course <strong>of</strong> sexual misconduct).<br />
19 In re Sadiki, No. C4-93-2317, 1994 WL 111336, at *1 (Minn. Ct. App. Apr. 5, 1994)<br />
(unpublished), rem<strong>and</strong>ed (Minn. Jan. 24, 1995); aff’d after rem<strong>and</strong>, No. C7-95-419, 1995 WL<br />
311799 (Minn. Ct. App. May 23, 1995).<br />
20 In re Hince, No. C9-94-1366, 1994 WL 637755, at *1 (Minn. Ct. App. Nov. 15, 1994)<br />
(unpublished).<br />
21 In re Rask, No. A08-1312, A08-1551, 2009 WL 511943, at *2 (Minn. Ct. App. Feb. 26, 2009)<br />
(unpublished).<br />
3
esistant to change,’” <strong>and</strong> that Rask’s conduct met that definition. 22 The other examiner<br />
“emphasized that appellant’s <strong>of</strong>fenses were committed ‘over a four year period <strong>of</strong> time despite<br />
very significant intervention efforts.’” 23<br />
In In re Givens, 24 the court upheld the finding <strong>of</strong> a habitual course <strong>of</strong> sexual misconduct<br />
where the person committed only three sexual assaults—two sexual assaults in one day <strong>and</strong> then<br />
a second 16 years later (following a 14-year prison term). And, for this purpose, the court found<br />
two sexual assaults where the person committed a sexual assault <strong>and</strong> left the victim dying, <strong>and</strong><br />
then came back <strong>and</strong> raped her again the same day. 25 In finding the three acts to constitute a<br />
habitual course <strong>of</strong> conduct, the court considered not only the number, but also the similarity, <strong>of</strong><br />
Givens’ assaults. 26 In In re Castonguay, 27 the appellate court held that three acts were sufficient<br />
to constitute a habitual course, even where one <strong>of</strong> them was only an attempted sexual assault that<br />
was thwarted. And in In re Larkin, 28 the court held that three assaults within a two-month<br />
period, followed by sexual activity while in prison treatment, constituted a habitual course <strong>of</strong><br />
sexual misconduct “as a matter <strong>of</strong> law.”<br />
In In re Meyer, 29 the court <strong>of</strong> appeals found clear <strong>and</strong> convincing evidence to support the<br />
lower court’s conclusion that Meyer’s sexual <strong>of</strong>fending was habitual based on the number <strong>of</strong><br />
victims, the number <strong>of</strong> years he had been <strong>of</strong>fending, the significant period <strong>of</strong> incarceration, <strong>and</strong><br />
his relatively young age. The Meyer court also held that the passage <strong>of</strong> four or five years, during<br />
which Meyer was confined, did not preclude the court from considering his earlier habitual<br />
behavior, especially where he engaged in prohibited sexual behavior during that earlier time<br />
period.<br />
The court <strong>of</strong> appeals in In re Gleason 30 stated that, although Gleason’s sexual misconduct<br />
involved more than one person, the law does not require multiple victims in order to meet the<br />
“habitual course” st<strong>and</strong>ard.<br />
The court in In re Bieganowski 31 found sexual conduct to be habitual based upon<br />
“similarities between the incidents <strong>of</strong> sexual activity with children.” In dicta in a later reported<br />
22 Id.<br />
23 Id.<br />
24 In re Givens, No. C4-02-995, 2002 WL 31554041, at *3 (Minn. Ct. App. Nov. 19, 2002)<br />
(unpublished).<br />
25 Id.<br />
26 Id.<br />
27 In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *5 (Minn. Ct. App. Dec. 15, 1999)<br />
(unpublished).<br />
28 In re Larkin, No. C9-99-382, 1999 WL 508655, at *2 (Minn. Ct. App. July 20, 1999)<br />
(unpublished).<br />
29<br />
In re Meyer, No. C7-96-981, 1996 WL 537500, at *1 (Minn. Ct. App. Dec. 17, 1996)<br />
(unpublished).<br />
30<br />
In re Gleason, No. C2-97-2194, 1998 WL 218223, at *2 (Minn. Ct. App. May 5, 1998)<br />
(unpublished).<br />
31 In re Beiganowski, 520 N.W.2d 525, 530 (Minn. Ct. App. 1994).<br />
4
decision involving only an SDP commitment, In re Stone, the appellate court said the “habitual<br />
course” requirement <strong>of</strong> the SPP law requires that the incidents be similar.” 32 Some unpublished<br />
appellate court decisions have said that Bieganowski or Stone requires that the acts in a “habitual<br />
course” be similar, 33 while other cases state that “similarities are useful” in determining or “can<br />
prove” whether the conduct was habitual. 34 In one case, citing Bieganowski, the court held that a<br />
“habitual course <strong>of</strong> sexual misconduct requires similar incidents <strong>of</strong> misconduct or incidents that<br />
form a pattern.” 35<br />
The appellate court has looked at different factors to establish similarity <strong>of</strong> past <strong>of</strong>fenses.<br />
In In re Brinkman, the court said: “The district court found that appellant’s <strong>of</strong>fenses are similar<br />
in that appellant appears to have targeted vulnerable individuals who are less likely to report his<br />
conduct to police <strong>and</strong> habitually kept lists <strong>of</strong> potential victims. These similarities establish a<br />
pattern <strong>of</strong> conduct.” 36 In In re Benson, the court observed: “Although the ages <strong>of</strong> appellant’s<br />
victims differed, the natures <strong>of</strong> the assaults against them were very similar. The victims were not<br />
groomed; they were suddenly abused or attacked by appellant because he could not control his<br />
sexual impulses. The record establishes a pattern <strong>of</strong> sexual assault with a progression <strong>of</strong><br />
boldness. Each <strong>of</strong> the victims was essentially helpless, <strong>and</strong> the harm suffered by each victim was<br />
also similar.” 37<br />
3. Not all acts within habitual pattern must meet harmfulness st<strong>and</strong>ard.<br />
Where the person has committed acts meeting the harmfulness threshold, other acts may<br />
be considered in establishing the habitual nature <strong>of</strong> the person’s sexual misconduct, even though<br />
those acts do not themselves meet the harmfulness st<strong>and</strong>ard. 38<br />
32 In re Stone, 711 N.W.2d 831, 837 (Minn. Ct. App. 2006) (dicta).<br />
33 In re Green, No. A06-2272, 2007 WL 1532156, at *5 (Minn. Ct. App. May 29, 2007)<br />
(unpublished); In re Eckman, No. A06-787, 2006 WL 2807205, at *6 (Minn. Ct. App. Oct. 3,<br />
2006) (unpublished); In re Gorden, No. A06-43, 2006 WL 1806464, at *6 (Minn. Ct. App.<br />
July 3, 2006) (unpublished).<br />
34 In re Hilton, No. A06-2261, 2007 WL 1532151, at *4 (Minn. Ct. App. May 29, 2007)<br />
(unpublished); In re Fisher, No. A05-579, 2005 WL 2209079, at *8 (Minn. Ct. App. Sept. 13,<br />
2005) (unpublished).<br />
35 In re Alverson, No. A06-1567, 2007 WL 447159, at *9 (Minn. Ct. App. Feb. 13, 2007)<br />
(unpublished).<br />
36 In re Brinkman, No. A08-1077, 2008 WL 5058637, at *6 (Minn. Ct. App. Dec. 2, 2008)<br />
(unpublished).<br />
37 In re Benson, No. A08-0793, 2008 WL 4850153, at *3 (Minn. Ct. App. Nov. 3, 2008)<br />
(unpublished).<br />
38 In re Alverson, No. A06-1567, 2007 WL 447159, at *6, 9 (Minn. Ct. App. Feb. 13, 2007)<br />
(unpublished) (stating that person’s “returning to his cycle” <strong>of</strong> sexual assault by contacting<br />
minors on the internet, using alcohol, accessing <strong>and</strong> possessing pornography could be considered<br />
part <strong>of</strong> “habitual course,” even though it was not completed harmful sexual conduct); In re<br />
Hommes, No. C2-00-831, 2001 WL 15754, at *2 (Minn. Ct. App. Jan. 9, 2001) (unpublished)<br />
(holding that telephoning <strong>and</strong> befriending young girls was part <strong>of</strong> grooming pattern, even though<br />
in some cases it did not lead to completed sexual misconduct).<br />
5
4. Convictions not necessary; juvenile acts qualify.<br />
Convictions are not necessary to prove a habitual course <strong>of</strong> sexual misconduct. Rather<br />
the courts look to the person’s history <strong>of</strong> sexual misconduct behavior regardless <strong>of</strong> the existence<br />
<strong>of</strong> any convictions for that behavior. 39 Under the SDP law, the court <strong>of</strong> appeals has held that a<br />
course <strong>of</strong> harmful sexual conduct was proven even where the person had no criminal convictions<br />
for his conduct. 40 Our federal district court has held that the federal constitution does not require<br />
prior criminal convictions, or even that the person’s conduct that supports commitment would<br />
violate criminal statutes. 41<br />
Because <strong>of</strong> the higher st<strong>and</strong>ard <strong>of</strong> pro<strong>of</strong> in criminal cases, an act may be proved in a civil<br />
commitment case even though the person has been acquitted <strong>of</strong> the act in a criminal<br />
prosecution. 42<br />
Some proposed patients have argued that acts committed as a juvenile may not support an<br />
SPP (or SDP) commitment. The court <strong>of</strong> appeals has held that there is no constitutional or other<br />
support for this argument. 43<br />
C. Utter Lack Of Power To Control <strong>Sexual</strong> Impulses.<br />
1. Necessity <strong>of</strong> expert testimony <strong>and</strong> court findings.<br />
The SPP law requires that the person must have an “utter lack <strong>of</strong> power to control [his]<br />
sexual impulses.” 44 For a short period, there was significant litigation <strong>and</strong> confusion as to the<br />
meaning <strong>of</strong> this requirement. This began with the June 1994 decision in In re Linehan<br />
39 In re Monson, 478 N.W.2d 785, 789 (Minn. Ct. App. 1991) (stating “statute does not address<br />
convictions but behavior”); In re Alverson, No. A06-1567, 2007 WL 447159, at *5 (Minn. Ct.<br />
App. Feb. 13, 2007) (unpublished); In re Benson, No. C4-02-2004, 2003 WL 21500189, at *3<br />
(Minn. Ct. App. July 1, 2003) (unpublished); In re Larson, No. C6-97-2215, 1998 WL 236167, at<br />
*3 (Minn. Ct. App. May 12, 1998) (unpublished); In re Mathews, No. C6-95-749, 1995 WL<br />
421702, at *2 (Minn. Ct. App. July 18, 1995) (unpublished); In re Patterson, No. C3-95-935,<br />
1995 WL 550898, at *4 (Minn. Ct. App. Sept. 19, 1995) (unpublished).<br />
40 In re Moore, No. A09-0623, 2009 WL 2747980, at *2-3 (Minn. Ct. App. Sept. 1, 2009),<br />
review denied (Minn. Nov. 17, 2009) (unpublished).<br />
41 Martin v. Mooney, No. 06-1605 DSD/RLE, 2007 WL 1306409, at *13-14 (D. Minn. May 3,<br />
2007).<br />
42 In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (involving mentally ill <strong>and</strong> dangerous<br />
commitment).<br />
43 In re Welin, No. C1-99-84, 1999 WL 410365, at *2 (Minn. Ct. App. June 22, 1999)<br />
(unpublished); In re Anderson, No. C8-98-976, 1998 WL 727734, at *5 (Minn. Ct. App. Oct. 20,<br />
1998) (unpublished); In re Hoium, No. C8-98-469, 1998 WL 531814, at *5 (Minn. Ct. App.<br />
Aug. 25, 1998) (unpublished).<br />
44 Pearson, 287 N.W. at 302; Minn. Stat. § 253B.02, subd. 18b (2009).<br />
6
(Linehan I), 45 in which the Minnesota Supreme Court reversed a PP commitment, holding that<br />
the county had failed to prove by clear <strong>and</strong> convincing evidence that the proposed patient had an<br />
utter lack <strong>of</strong> power to control his sexual impulses. 46 In so doing, the court emphasized the<br />
importance <strong>of</strong> the Pearson utter-lack-<strong>of</strong>-power-to-control test. 47 The court’s concern arose<br />
because the expert witnesses were questioned in terms <strong>of</strong> the pre-1994 statutory st<strong>and</strong>ard, rather<br />
than the Pearson st<strong>and</strong>ard. 48 The Linehan I court said the Pearson definition must be followed<br />
<strong>and</strong> cases that misapplied the statute as narrowed in Pearson should be reversed. 49<br />
Just months earlier in In re Blodgett, 50 however, the supreme court had found no need to<br />
reverse or rem<strong>and</strong> the decision <strong>of</strong> the lower court, even though the trial judge’s findings followed<br />
the pre-1994 statutory language rather than the Pearson test. Instead, Blodgett construed the trial<br />
court’s findings in view <strong>of</strong> the evidence to accord with the Pearson test. 51 The supreme court<br />
<strong>and</strong> the court <strong>of</strong> appeals have been somewhat inconsistent in how to address the situation where<br />
the lower court did not make findings in terms <strong>of</strong> Pearson. 52<br />
45 In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).<br />
46 Id. at 614. Justice Gardebring dissented from the court’s decision, contending that the Pearson<br />
st<strong>and</strong>ard had been met. However, she argued that a system under which a person is criminally<br />
responsible for his acts, but is subsequently found to have been utterly unable to control them, “is<br />
both logically <strong>and</strong> legally inconsistent, <strong>and</strong> fundamentally unfair.” 518 N.W.2d at 615. She<br />
noted that Linehan’s criminal conviction for kidnapping <strong>and</strong> attempted rape was based on intent<br />
or mens rea. Because a civil commitment is based upon inability to control sexual impulses—a<br />
form <strong>of</strong> diminished intent—she argued that the criminal conviction <strong>and</strong> the civil commitment<br />
<strong>of</strong>fer inconsistent explanations for the same behavior. Id.<br />
47 Id.<br />
48 Id. at 614.<br />
49 Id. at 610.<br />
50 In re Blodgett, 510 N.W.2d 910, 917 (Minn. 1994).<br />
51 Id.<br />
52 In re Kunshier, 521 N.W.2d 880, 885 (Minn. Ct. App. 1994) (lacking guidance <strong>of</strong> Linehan I<br />
<strong>and</strong> Blodgett, district court made findings in terms <strong>of</strong> the pre-1994 PP statute, <strong>and</strong> failed to apply<br />
limiting language <strong>of</strong> Pearson; nonetheless, court <strong>of</strong> appeals rem<strong>and</strong>ed for additional hearing <strong>and</strong><br />
findings on whether Kunshier had utter lack <strong>of</strong> power to control sexual impulses); In re Toulou,<br />
No. C9-94-993, 1994 WL 593907, at *3 (Minn. Ct. App. Nov. 1, 1994) (unpublished)<br />
(rem<strong>and</strong>ing to lower court for additional findings regarding utter lack <strong>of</strong> power to control where<br />
court made inconsistent findings as to whether Toulou was unable to control his sexual<br />
impulses); cf. In re Holly, No. C9-94-492, 1994 WL 396314, at *2 (Minn. Ct. App. Aug. 2,<br />
1994) (unpublished) (citing Blodgett, appellate court affirmed PP commitment, even though<br />
lower court’s order had not used utter-lack-<strong>of</strong>-power-to-control language, because evidence<br />
supported determination that appellant met st<strong>and</strong>ard); In re Hendrickson, C6-92-1790, 1992 WL<br />
383446, at *1 (Minn. Ct. App. Dec. 29, 1992) (unpublished) (stating that trial court’s failure to<br />
render findings in exact language <strong>of</strong> utter lack <strong>of</strong> power to control sexual impulses is not<br />
determinative where the findings <strong>and</strong> record provide clear <strong>and</strong> convincing evidence that the<br />
st<strong>and</strong>ard is actually met); Kruger v. Comm’r <strong>of</strong> Human Servs., No. C4-95-1866, 1996 WL 5786,<br />
at *2 (Minn. Ct. App. Jan. 9, 1996) (unpublished) (in state court habeas action by person<br />
committed as PP, stating it was not fatal to constitutionality <strong>of</strong> the commitment that trial court’s<br />
7
The necessity <strong>of</strong> expert testimony that the person lacks the ability to control his sexual<br />
impulses has also been unclear. The supreme court in Linehan I held that whether a person has<br />
an utter lack <strong>of</strong> power to control is a legal matter, rather than a factual issue. 53 Subsequently,<br />
however, in In re Mentzos, 54 the court <strong>of</strong> appeals reversed the district court’s conclusion that the<br />
appellant had an utter lack <strong>of</strong> power to control, apparently because all <strong>of</strong> the experts who had<br />
addressed that issue had concluded that Mentzos did not meet the requirement. But in a later<br />
case, In re Luhmann, 55 the appellate court upheld a district court decision finding utter lack <strong>of</strong><br />
power to control despite the fact that both examiners had concluded that the requirement was not<br />
met.<br />
Consider also a 1972 state supreme court decision in Keiser v. Sheppard. 56 In Keiser, the<br />
two examiners had both found that the proposed patient met the commitment requirements for<br />
commitment as a PP. The trial judge disagreed, but nonetheless committed the patient, believing<br />
that he was “outvoted” <strong>and</strong> therefore bound by the decisions <strong>of</strong> the two examiners. The supreme<br />
court overturned the commitment, saying:<br />
We think it clear that the legislature intended the probate judge to have the<br />
exclusive authority to determine whether the patient was a psychopathic<br />
personality <strong>and</strong> that the examining doctors functioned only as expert witnesses<br />
rather than as coequal members <strong>of</strong> a judicial tribunal. 57<br />
2. “Mental illness,” lack <strong>of</strong> criminal responsibility, <strong>and</strong> “psychopathy”<br />
not necessary.<br />
The SPP law does not require that the person be “mentally ill” as that term might<br />
ordinarily be used. 58 Similarly, the fact that the person was found to be criminally responsible<br />
(i.e., not qualifying for the insanity defense) or competent to st<strong>and</strong> trial in a criminal case does<br />
not contradict a finding that he meets the disorder requirement <strong>of</strong> the SPP law. 59<br />
findings did not recite Pearson st<strong>and</strong>ard, where it was clear from the record that the trial court<br />
<strong>and</strong> the witnesses had considered that st<strong>and</strong>ard).<br />
53<br />
Linehan I, 518 N.W.2d at 613.<br />
54<br />
In re Mentzos, No. C3-95-2331, 1996 WL 81721, at *4-5 (Minn. Ct. App. Feb. 27, 1996)<br />
(unpublished).<br />
55<br />
In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn. Ct. App. Aug. 28, 2007)<br />
(unpublished).<br />
56 Keiser v. Sheppard, 194 N.W.2d 286 (Minn. 1972).<br />
57 Id. at 288.<br />
58 In re Blodgett, 510 N.W.2d 910, 914 (Minn. 1994); In re Holden, No. C1-00-2229, 2001 WL<br />
683004, at *2 (Minn. Ct. App. June 19, 2001) (unpublished).<br />
59 In re Linehan (Linehan III), 557 N.W.2d 171, 183, vacated <strong>and</strong> rem<strong>and</strong>ed, 522 U.S. 1011<br />
(1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999) (uncontrollable impulse not a defense<br />
to a crime); In re Holden, No. C1-00-2229, 2001 WL 683004, at *6 (Minn. Ct. App. June 19,<br />
2001) (unpublished) (finding <strong>of</strong> criminal competency no bar to SPP commitment).<br />
8
A person need not be a “psychopath” as measured on a commonly used instrument for<br />
assessing psychopathy, the PCL-R, in order to be committed as an SPP. 60 Conversely, the fact<br />
that the person is a “psychopath” as measured by the PCL-R does not mean the person satisfies<br />
the SPP commitment definition; “even though the names ‘sexual psychopathic personality’ <strong>and</strong><br />
‘clinical psychopath’ are similar, they are not the same thing.” 61<br />
3. Blodgett factors.<br />
In upholding the constitutionality <strong>of</strong> the PP law, the Minnesota Supreme Court in In re<br />
Blodgett 62 found that “the psychopathic personality statute identifies a volitional dysfunction<br />
which grossly impairs judgment <strong>and</strong> behavior with respect to the sex drive.” 63 The supreme<br />
court set out the following list <strong>of</strong> factors to consider in determining whether a person meets the<br />
Pearson st<strong>and</strong>ard:<br />
In applying the Pearson test, the court considers the nature <strong>and</strong> frequency <strong>of</strong> the<br />
sexual assaults, the degree <strong>of</strong> violence involved, the relationship (or lack there<strong>of</strong>)<br />
between the <strong>of</strong>fender <strong>and</strong> the victims, the <strong>of</strong>fender’s attitude <strong>and</strong> mood, the<br />
<strong>of</strong>fender’s medical <strong>and</strong> family history, the results <strong>of</strong> psychological <strong>and</strong> psychiatric<br />
testing <strong>and</strong> evaluation, <strong>and</strong> such other factors that bear on the predatory sex<br />
impulse <strong>and</strong> the lack <strong>of</strong> power to control it. 64<br />
Since Blodgett <strong>and</strong> Linehan, the court <strong>of</strong> appeals has routinely cited this list <strong>of</strong> factors when<br />
evaluating a claim that the commitment petitioner has not shown an utter lack <strong>of</strong> power to<br />
control. 65<br />
It might be suggested, however, that the Blodgett factors are not the most sensible<br />
indicators <strong>of</strong> inability to control sexually predatory behavior. Whether the petitioner had shown<br />
utter lack <strong>of</strong> power to control was not at issue before the supreme court in Blodgett, <strong>and</strong> the<br />
court’s list <strong>of</strong> factors relating to inability to control was not taken from the parties’ argument or<br />
from any other identified source. It is unclear what bearing some <strong>of</strong> the Blodgett factors, such as<br />
relationship between <strong>of</strong>fender <strong>and</strong> victim <strong>and</strong> the <strong>of</strong>fender’s medical <strong>and</strong> family history, have on<br />
inability to control. Experts in SPP cases have struggled to tie some <strong>of</strong> the Blodgett factors to<br />
inability to control. In In re Love, for example, the court <strong>of</strong> appeals commented that one <strong>of</strong> the<br />
60<br />
In re Kirck<strong>of</strong>, No. A06-956, 2006 WL 3007995, at *7 (Minn. Ct. App. Oct. 24, 2006)<br />
(unpublished); In re Luhmann, No. A07-912, 2007 WL 2417341, at *5 (Minn. Ct. App. Aug. 28,<br />
2007) (unpublished).<br />
61<br />
In re Whitley, No. A09-1898, 2010 WL 1192307, at *6-7 (Minn. Ct. App. March 30, 2010)<br />
(unpublished).<br />
62<br />
In re Blodgett, 510 N.W.2d 910 (Minn. 1994).<br />
63 Id. at 915.<br />
64 Id.<br />
65 See, e.g., In re Fugelseth, No. A03-1330, 2004 WL 422695, at *8 (Minn. Ct. App. Mar. 9,<br />
2004) (unpublished); In re Carner, No. A03-577, 2003 WL 22481102, at *2 (Minn. Ct. App.<br />
Nov. 4, 2003) (unpublished); In re Rubin, No. C5-02-570, 2002 WL 31111248, at *3 (Minn. Ct.<br />
App. Sept. 24, 2002) (unpublished).<br />
9
experts, on whom the trial court relied heavily, testified that degree <strong>of</strong> violence “was not<br />
particularly helpful” in determining inability to control in the case <strong>of</strong> pedophiles, <strong>and</strong> that “it was<br />
difficult to make the connection between family history <strong>and</strong> lack <strong>of</strong> control.” 66 Moreover, it is<br />
not entirely clear from Blodgett whether the court’s list <strong>of</strong> factors was directed solely to the<br />
utter-lack-<strong>of</strong>-power-to-control element, or whether the court intended the factors to address all<br />
three <strong>of</strong> the Pearson commitment requirements.<br />
Likely because <strong>of</strong> this difficulty, the court <strong>of</strong> appeals has held that the Blodgett factors<br />
must be used in a considered way. Although the court in In re Kubec 67 noted that the Blodgett<br />
factors are not dicta <strong>and</strong> are to be used in applying the Pearson test, it cautioned that “the<br />
Blodgett factors are not a checklist” <strong>and</strong> “the district court is to decide, based on the evidence,<br />
which factors are relevant in the particular case.” The court indicated that “the factors <strong>and</strong> all<br />
the evidence should be considered as a whole.”<br />
As noted above, one <strong>of</strong> the Blodgett factors is “the degree <strong>of</strong> violence involved” in the<br />
person’s past sexual misconduct. 68 Proposed patients sometimes argue that physical violence is<br />
necessary to show an utter lack <strong>of</strong> power to control. However, the court <strong>of</strong> appeals has held that,<br />
in using the term “violence,” the supreme court was referring to the st<strong>and</strong>ard later announced in<br />
In re Rickmyer, 69 requiring that the conduct create a substantial likelihood <strong>of</strong> serious physical or<br />
mental harm to the victims; thus acts <strong>of</strong> a pedophile or other <strong>of</strong>fender who did not employ<br />
physical violence may meet the statutory requirement, <strong>and</strong> any requirement imposed by the<br />
Blodgett factors. 70 The court <strong>of</strong> appeals has held that, while the absence <strong>of</strong> overt physical<br />
violence may weigh against a finding <strong>of</strong> utter lack <strong>of</strong> power to control, that fact is not dispositive<br />
<strong>and</strong> other factors may support the lack-<strong>of</strong>-control finding. 71<br />
In another case, the appellate court explained that the Blodgett factor addressing the<br />
<strong>of</strong>fender’s “mood <strong>and</strong> attitude” may include the lack <strong>of</strong> insight described below. 72<br />
66 In re Love, No. C4-98-2076, 1999 WL 243602, at *2-3 (Minn. Ct. App. Apr. 27, 1999)<br />
(unpublished).<br />
67 In re Kubec, C9-97-1673, 1998 WL 27295, at *2 (Minn. Ct. App. Jan. 27, 1998)<br />
(unpublished).<br />
68 Blodgett, 510 N.W.2d at 915.<br />
69 In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994).<br />
70 In re Williams, No. A05-1271, 2005 WL 3470517, at *6 (Minn. Ct. App. Dec. 20, 2005)<br />
(unpublished); In re Hoium, No. C2-98-469, 1998 WL 531814, at *3 (Minn. Ct. App. Aug. 25,<br />
1998) (unpublished); In re Poole, Nos. C4-00-85 & C8-00-171, 2000 WL 781381, at *3 (Minn.<br />
Ct. App. June 20, 2000) (unpublished); In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn.<br />
Ct. App. Jan. 9, 2001) (unpublished).<br />
71 In re Williams, No. A05-1271, 2005 WL 3470517, at *6 (Minn. Ct. App. Dec. 20, 2005)<br />
(unpublished).<br />
72 In re Love, No. C4-98-2076, 1999 WL 243602, at *3 (Minn. Ct. App. Apr. 27, 1999)<br />
(unpublished).<br />
10
4. Planning/grooming does not preclude inability to control.<br />
Initially, the Minnesota Supreme Court seemed to indicate that a proposed patient’s<br />
planning behavior may preclude a finding <strong>of</strong> utter lack <strong>of</strong> power to control his sexual impulses.<br />
In finding a failure to prove utter lack <strong>of</strong> power to control sexual impulses, the Linehan I court<br />
emphasized expert testimony that Linehan’s behavior leading up to a sexually motivated<br />
kidnap/murder was “planned” <strong>and</strong> “planful.” 73 This testimony about planned behavior, together<br />
with the failure to question any <strong>of</strong> the experts in terms <strong>of</strong> the Pearson<br />
utter-lack-<strong>of</strong>-power-to-control st<strong>and</strong>ard, proved fatal on appeal. In subsequent decisions,<br />
however, with one exception, the appellate court has concluded that planned or planful behavior<br />
is not inconsistent with an utter lack <strong>of</strong> power to control one’s sexual impulses.<br />
In In re Schweninger, issued shortly after Linehan I, the court <strong>of</strong> appeals held that a<br />
pedophile’s “classic grooming behavior,” “plotting, planning” <strong>and</strong> “seduction” were inconsistent<br />
with an utter lack <strong>of</strong> power to control, <strong>and</strong> reversed his commitment. 74 But despite the Linehan I<br />
<strong>and</strong> Schweninger courts’ conclusion that planning <strong>and</strong> grooming are inconsistent with an utter<br />
lack <strong>of</strong> power to control sexual impulses, thereafter the courts have reconciled evidence <strong>of</strong> the<br />
proposed patient’s planning with a finding <strong>of</strong> utter lack <strong>of</strong> power to control sexual impulses. By<br />
2002, the appellate court observed: “The case law is clear, however, that such [grooming]<br />
behavior in a pedophile does not preclude a finding <strong>of</strong> utter lack <strong>of</strong> power to control sexual<br />
impulses.” 75<br />
The week after Schweninger, the same panel <strong>of</strong> the court <strong>of</strong> appeals in In re Bieganowski<br />
found an utter lack <strong>of</strong> power to control, even though the appellant had engaged in “grooming”<br />
behavior with his victims. 76 The court said:<br />
Although the “grooming” process requires time, thus eliminating any<br />
“suddenness” regarding the sexual activity, the habitual nature <strong>of</strong> appellant’s<br />
predatory sexual conduct indicates an inability to stop the “grooming” behavior.<br />
The trial court reasoned that appellant’s failure to remove himself from situations<br />
that provide the opportunity for similar <strong>of</strong>fenses, <strong>and</strong> his failure to avoid<br />
precursors that trigger his impulsive behavior, such as consumption <strong>of</strong> large<br />
quantities <strong>of</strong> alcohol, demonstrate his lack <strong>of</strong> control. 77<br />
The court <strong>of</strong> appeals reached similar conclusions in a number <strong>of</strong> other cases. In In re Preston,<br />
the court said: “Though grooming <strong>and</strong> planning behavior can show the ability to control the<br />
sexual impulse, where the grooming behavior itself is uncontrollable, the impulse is likewise not<br />
controllable.” 78 In In re Adolphson, the court <strong>of</strong> appeals held that a pedophile’s “grooming”<br />
73<br />
Linehan I, 518 N.W.2d at 612-13 (Minn. 1994).<br />
74<br />
In re Schweninger, 520 N.W.2d 446, 450 (Minn. Ct. App. 1994).<br />
75<br />
In re Rubin, No. C5-02-570, 2002 WL 31111248, at *4 (Minn. Ct. App. Sept. 24, 2002)<br />
(unpublished).<br />
76<br />
In re Bieganowski, 520 N.W.2d 525 (Minn. Ct. App. 1994).<br />
77<br />
Id. at 530.<br />
78<br />
In re Preston, 629 N.W.2d 104, 111 (Minn. Ct. App. 2001).<br />
11
ehavior does not preclude a finding <strong>of</strong> utter lack <strong>of</strong> power to control, “where there is an inability<br />
to stop such behavior.” 79 The court explained:<br />
The fact that appellant engaged in “grooming” behavior does not preclude a<br />
finding <strong>of</strong> utter lack <strong>of</strong> power to control, where there is an inability to stop such<br />
behavior <strong>and</strong> other indications <strong>of</strong> lack <strong>of</strong> control. Appellant’s behavior, which has<br />
elements <strong>of</strong> both control <strong>and</strong> impulse, appears to be a paradox, but closer<br />
examination reveals this is not the case. The planning <strong>and</strong> sex acts are a single<br />
unit <strong>of</strong> compulsive behavior, triggered by the presence <strong>of</strong> young males, <strong>and</strong><br />
played out in a predictable sequence <strong>of</strong> events. 80<br />
In In re Pirkl, a PP commitment was upheld even though appellant’s actions involved a<br />
“fair amount <strong>of</strong> planning <strong>and</strong> deliberateness.” 81<br />
In In re Young, the court <strong>of</strong> appeals held again that a pedophile’s grooming <strong>of</strong> his victims<br />
does not preclude a finding <strong>of</strong> utter lack <strong>of</strong> power to control sexual impulses. 82 Similarly, the<br />
court <strong>of</strong> appeals in In re Hart, held that a pedophile who used “isolation, bribes, threats, force,<br />
<strong>and</strong> alcohol” to approach, groom, <strong>and</strong> molest children met the utter-lack-<strong>of</strong>-power-to-control<br />
st<strong>and</strong>ard. 83 In In re Mayfield, the court found an utter lack <strong>of</strong> power to control even though<br />
appellant stalked his victims <strong>and</strong> his actions were “deliberate to some degree.” 84<br />
5. Re<strong>of</strong>fense despite intent not to.<br />
The U.S. Supreme Court has observed that the most obvious manifestation <strong>of</strong> inability to<br />
control is the situation where the person wishes to avoid the sexual assaults but cannot control<br />
his strong urges to do so. 85 Our court <strong>of</strong> appeals has found inability to control in such<br />
situtations. 86 But the high Court also recognized that inability to control may also be manifested<br />
in other ways. 87<br />
79<br />
In re Adolphson, No. C5-95-533, 1995 WL 434386 (Minn. Ct. App. July 25, 1995)<br />
(unpublished).<br />
80<br />
Id. (citation omitted).<br />
81<br />
In re Pirkl, 531 N.W.2d 902, 905 (Minn. Ct. App. 1995).<br />
82<br />
In re Young, No. C1-94-1779, 1994 WL 654508, at *2 (Minn. Ct. App. Nov. 22, 1994)<br />
(unpublished).<br />
83<br />
In re Hart, No. C9-95-2057, 1996 WL 56504, at *2-3 (Minn. Ct. App. Feb. 9, 1996)<br />
(unpublished), summ. aff’d (Minn. Jan. 21, 1997).<br />
84<br />
In re Mayfield, No. C2-95-103, 1995 WL 254407, at *3 (Minn. Ct. App. May 2, 1995)<br />
(unpublished).<br />
85<br />
Kansas v. Crane, 534 U.S. 407, 414-15, 122 S. Ct. 867, 871 (2002).<br />
86<br />
In re Daniels, No. A03-623, 2003 WL 22707418, at *5 (Minn. Ct. App. Nov. 18, 2003)<br />
(unpublished).<br />
87<br />
Crane, 534 U.S. at 415, 122 S. Ct. at 871-72.<br />
12
6. Lack <strong>of</strong> insight showing inability to control.<br />
A number <strong>of</strong> decisions have held that an <strong>of</strong>fender’s lack <strong>of</strong> insight into his sexual<br />
misconduct <strong>and</strong> the harm it produces relates to an inability to control sexual impulses. In In re<br />
Irwin, the court <strong>of</strong> appeals credited expert testimony that<br />
an important factor in determining whether one has power to control sexual<br />
impulses is whether the person feels he has a problem; if so, he at least has some<br />
control since he knows he is flawed, <strong>and</strong> may be more vigilant in seeking<br />
assistance . . . . Without this basic insight, appellant has the utter lack <strong>of</strong> control<br />
required by Pearson. 88<br />
The court in In re Adolphson concluded that appellant’s lack <strong>of</strong> insight <strong>and</strong> remorse showed he<br />
had an utter lack <strong>of</strong> power to control. The court stated that Adolphson was aware that his<br />
conduct was against the law, yet had an “entrenched belief” that sexual activity with young boys<br />
was acceptable <strong>and</strong> was convinced that “he has provided a service to young men, <strong>and</strong> that the<br />
law is wrong. This complete lack <strong>of</strong> will shows he continues to have an utter lack <strong>of</strong> control.” 89<br />
Other court <strong>of</strong> appeals decisions have also relied, at least in part, upon evidence <strong>of</strong> lack <strong>of</strong> insight<br />
to support a finding <strong>of</strong> utter lack <strong>of</strong> power to control sexual impulses. 90<br />
7. Need not be out <strong>of</strong> control all the time.<br />
The confusion about the meaning <strong>of</strong> utter lack <strong>of</strong> power to control arose in large part<br />
from the practice <strong>of</strong> placing a testimonial/evidentiary burden upon psychologists to address an<br />
issue that is legal, rather than psychiatric, in character. As the court <strong>of</strong> appeals explained in<br />
Adolphson, “any confusion as to whether Adolphson continued to demonstrate an utter lack <strong>of</strong><br />
control arose from the fact that the psychiatric definition <strong>of</strong> control is much narrower than the<br />
legal definition.” 91 For example, in In re Patterson, the court <strong>of</strong> appeals rejected an overly literal<br />
interpretation <strong>of</strong> “utter” lack <strong>of</strong> power to control presented by a psychologist who “limited his<br />
88<br />
In re Irwin, 529 N.W.2d 366, 375 (Minn. Ct. App. 1995).<br />
89<br />
In re Adolphson, No. C5-95-533, 1995 WL 434386, at *4 (Minn. Ct. App. July 25, 1995)<br />
(unpublished).<br />
90<br />
In re Sadiki, No. C4-93-2317, 1994 WL 111336 (Minn. Ct. App. Apr. 5, 1994) (unpublished),<br />
rem<strong>and</strong>ed (Minn. Jan. 24, 1995); aff’d after rem<strong>and</strong>, No. C7-95-419, 1995 WL 311799 (Minn.<br />
Ct. App. May 23, 1995) (finding an utter lack <strong>of</strong> power to control where evidence showed<br />
proposed patient committed habitual sex <strong>of</strong>fenses, has no insight into his condition, does not<br />
believe he needs treatment, <strong>and</strong> continues to be hostile, angry, <strong>and</strong> dangerous); In re Sadiki, No.<br />
C7-95-419, 1995 WL 311799 (Minn. Ct. App. May 23, 1995) (unpublished) (on rem<strong>and</strong> from<br />
supreme court to reconsider in light <strong>of</strong> Rickmyer <strong>and</strong> Linehan, Sadiki found unable to control his<br />
sexual impulses due in part to his failure to underst<strong>and</strong> his propensity towards violence <strong>and</strong><br />
rape); In re Larson, No. C6-97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998)<br />
(unpublished) (utter lack <strong>of</strong> power to control sexual impulses shown by evidence <strong>of</strong> impulsivity,<br />
desire for vengeance, denial <strong>of</strong> wrongdoing, <strong>and</strong> lack <strong>of</strong> treatment).<br />
91<br />
In re Adolphson, No. C1-94-146, 1994 WL 200601 (Minn. Ct. App. May 24, 1994)<br />
(unpublished).<br />
13
definition <strong>of</strong> lack <strong>of</strong> control only to those very extreme examples <strong>of</strong> persons who had cognitive<br />
deficits arising from conditions such as severe mental retardation, dementia, or organic brain<br />
damage, which meant no individual presently committed would meet his st<strong>and</strong>ard.” 92 The court<br />
concluded that this definition was not consistent with that <strong>of</strong> the supreme court. Similarly, the<br />
court in In re Kunshier held that a definition <strong>of</strong> “utter lack <strong>of</strong> power to control, which would be<br />
limited to those individuals who suffer conditions such as psychosis, sleep walking or brain<br />
seizures,” “is inconsistent with the supreme court’s discussion in Blodgett.” 93<br />
In Pirkl, the court <strong>of</strong> appeals held that a person could meet the<br />
utter-lack-<strong>of</strong>-power-to-control st<strong>and</strong>ard without being out <strong>of</strong> control all the time. 94 The court<br />
noted expert testimony that<br />
Pirkl is capable <strong>of</strong> controlling his behavior in a courtroom. If there is a situation<br />
in which Pirkl feels rejected or ab<strong>and</strong>oned, however, his anger will be rekindled<br />
<strong>and</strong> in his moment <strong>of</strong> rage, he will be in a state <strong>of</strong> impulsivity <strong>and</strong> emotional<br />
instability with a pr<strong>of</strong>ound probability <strong>of</strong> acting out. 95<br />
In In re Irwin, the court <strong>of</strong> appeals upheld a finding <strong>of</strong> utter lack <strong>of</strong> control, noting testimony that<br />
the appellant “reaches a point were there is an utter lack <strong>of</strong> power to control impulses (as<br />
opposed to having an utter lack <strong>of</strong> control every minute <strong>of</strong> the day).” 96 Similarly, the court in In<br />
re Toulou held that it is not necessary, in order to find an utter lack <strong>of</strong> power to control, that the<br />
person’s sexual impulses be uncontrollable all the time. The court said:<br />
[T]he trial court accepted expert testimony that no one has a total lack <strong>of</strong> control<br />
in the sense <strong>of</strong> never being able to control one’s impulses. The trial court cited<br />
testimony that Toulou was like a wild, predatory animal, which will strike when it<br />
is hungry <strong>and</strong> when prey is available unless deterred by other larger predators.<br />
The court found that Toulou is “totally dependent on external forces to conform to<br />
society’s mores” <strong>and</strong> that a “removal <strong>of</strong> those external controls, however, will<br />
predictably result in [Toulou] acting on his impulses.” 97<br />
The court <strong>of</strong> appeals in In re Mattson found that the appellant showed an utter lack <strong>of</strong><br />
control when he acted out sexually, although he did not do so 24 hours a day. The court<br />
explained: “Lack <strong>of</strong> control is situational <strong>and</strong> will occur when the impulses arise or manifest<br />
themselves.” 98 In In re Krueger, the appellate court cited testimony <strong>of</strong> an expert witness that,<br />
“given an available victim, available means, <strong>and</strong> available circumstances, appellant is utterly<br />
92<br />
In re Patterson, No. C3-95-935, 1995 WL 550898 (Minn. Ct. App. Sept. 19, 1995)<br />
(unpublished).<br />
93<br />
In re Kunshier, No. C7-95-1490, 1995 WL 687692 (Minn. Ct. App. Nov. 21, 1995)<br />
(unpublished).<br />
94<br />
In re Pirkl, 531 N.W.2d 902 (Minn. 1995).<br />
95<br />
Id. at 905.<br />
96<br />
In re Irwin, 529 N.W.2d 366, 375 (Minn. Ct. App. 1995).<br />
97<br />
In re Toulou, No. C0-94-2518, 1995 WL 265071 (Minn. Ct. App. May 9, 1995) (unpublished).<br />
98<br />
In re Mattson, No. C8-95-2423, 1996 WL 167638 (Minn. Ct. App. Apr. 9, 1996)<br />
(unpublished).<br />
14
unable to control his sexual behaviors.” 99 In In re Hommes, the court <strong>of</strong> appeals noted that,<br />
“once the opportunity for sexual behavior presented itself, Hommes did not have the ability to<br />
control his impulses.” 100<br />
In In re Preston, the appellate court held that lack <strong>of</strong> re<strong>of</strong>fense while a person was<br />
released on bail for a 10-month period was insufficient to demonstrate he did not have an utter<br />
lack <strong>of</strong> power to control. 101 And in In re Rubin <strong>and</strong> In re Carner, the court held that failure to<br />
re<strong>of</strong>fend or act out sexually while in prison does not demonstrate that the person has the ability<br />
to control his sexual behavior. 102 Similarly, in In re Hammermeister, the court held that a period<br />
<strong>of</strong> 12 years since the person’s last <strong>of</strong>fense did not preclude a finding <strong>of</strong> utter lack <strong>of</strong> power to<br />
control, saying that, because the respondent had been incarcerated or in residential treatment the<br />
majority <strong>of</strong> the time, “his opportunity to re<strong>of</strong>fend has been minimal.” 103<br />
In In re Eberhart, the appellate court upheld a finding <strong>of</strong> utter lack <strong>of</strong> power to control<br />
even though the person had been released to the community for periods totaling five years since<br />
his last sex <strong>of</strong>fense. 104<br />
8. Misconduct despite consequences showing lack <strong>of</strong> control.<br />
A number <strong>of</strong> courts have found that a person’s failure to respond to consequences for his<br />
sexual misconduct reflects an utter lack <strong>of</strong> control <strong>of</strong> sexual impulses. In Kunshier, the court <strong>of</strong><br />
appeals emphasized that the appellant had committed sexual assaults without regard to<br />
consequences, noting he had committed<br />
some <strong>of</strong> these acts while on probation, after escaping from custody, <strong>and</strong> during or<br />
after completing sex <strong>of</strong>fender programming. His assaults have been committed<br />
within a day or a week <strong>of</strong> being released from or escaping from custody . . . . He<br />
rapes while actively fleeing pursuing peace <strong>of</strong>ficers. His sexual impulses override<br />
any normal fear <strong>of</strong> capture or consequences, <strong>and</strong> he has admitted feeling<br />
“fearless” while committing these assaults. The trial court found appellant is<br />
“totally dependent” upon confinement to control his sexual impulses. 105<br />
99 In re Krueger, No. C3-96-2503, 1997 WL 206802, at *4 (Minn. Ct. App. Apr. 29, 1997)<br />
(unpublished).<br />
100 In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn. Ct. App. Jan. 9, 2001) (unpublished).<br />
101 In re Preston, 629 N.W.2d 104, 111 (Minn. Ct. App. 2001).<br />
102 In re Rubin, No. C5-02-570, 2002 WL 31111248, at *4 (Minn. Ct. App. Sept. 24, 2002)<br />
(unpublished); In re Carner, No. A03-577, 2003 WL 22481102, at *3 (Minn. Ct. App. Nov. 4,<br />
2003) (unpublished).<br />
103 In re Hammermeister, No. A08-1461, 2009 WL 367372, at *8 (Minn. Ct. App. Feb. 17, 2009)<br />
(unpublished).<br />
104 In re Eberhart, No. A06-2044, 2007 WL 738719, at *3 (Minn. Ct. App. Mar. 13, 2007)<br />
(unpublished).<br />
105 In re Kunshier, No. C7-95-1490, 1995 WL 687692 (Minn. Ct. App. Nov. 21, 1995)<br />
(unpublished).<br />
15
Equally brazen, perhaps, was the appellant in In re Crocker. 106 He engaged in sexually<br />
inappropriate or criminal behavior even when it was almost inevitable he would be caught; he<br />
committed <strong>of</strong>fenses while on parole or probation; he was implicated with sexually inappropriate<br />
behavior while confined; he sexually assaulted one woman who escaped, <strong>and</strong> then raped her<br />
friend while the first woman called authorities; he molested a child a second time three months<br />
after his release from prison for molesting her the first time. 107<br />
In In re Mattson, the court <strong>of</strong> appeals cited expert testimony that “the utter lack <strong>of</strong> control<br />
was demonstrated by the fact that, even when appellant was in a structured setting, he had<br />
difficulty refraining from the use <strong>of</strong> pornography” <strong>and</strong> “when a person engages in behavior<br />
despite repeated consequences, it evidences a lack <strong>of</strong> control.” 108 Similar facts were considered<br />
in In re Love, where the proposed patient had acted out sexually even while in prison treatment<br />
programs where discovery was likely. 109<br />
As illustrated above, a prime example <strong>of</strong> an utter lack <strong>of</strong> power to control one’s sexual<br />
impulses is to sexually re<strong>of</strong>fend or act out inappropriately shortly after release from confinement<br />
or while in treatment. 110<br />
106 In re Crocker, No. C0-95-2500, 1996 WL 192974 (Minn. Ct. App. Apr. 23, 1996)<br />
(unpublished), summ. aff’d (Minn. Jan. 21, 1997).<br />
107 In re Crocker, No. C7-97-604, 1997 WL 471481 (Minn. Ct. App. Aug. 19, 1997)<br />
(unpublished), summ. aff’d (Minn. Jan. 21, 1997) (court also found significant his lack <strong>of</strong><br />
selectivity in his victims—children <strong>and</strong> adults, usually female but also males when only they<br />
were available).<br />
108 In re Mattson, No. C5-95-452, 1995 WL 365374 (Minn. Ct. App. June 20, 1995)<br />
(unpublished).<br />
109 In re Love, No. C4-98-2076, 1999 WL 243602, at *3 (Minn. Ct. App. Apr. 27, 1999)<br />
(unpublished).<br />
110 In re Anderson, No. A06-2008, 2007 WL 824019, at *4 (Minn. Ct. App. Mar. 20, 2007)<br />
(unpublished), (court citing examiner’s testimony regarding appellant’s repeated harmful sexual<br />
conduct despite negative consequences); In re Rubin, No. C5-02-570, 2002 WL 31111248, at *4<br />
(Minn. Ct. App. Sept. 24, 2002) (unpublished) (finding utter lack where person re<strong>of</strong>fended<br />
during treatment <strong>and</strong> repeatedly acted out despite severe consequences; court also cited number<br />
<strong>and</strong> continuous nature <strong>of</strong> <strong>of</strong>fenses); In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *7<br />
(Minn. Ct. App. Dec. 15, 1999) (unpublished) (<strong>of</strong>fended after correctional sanctions, <strong>and</strong> even<br />
while in prison); In re Fitzpatrick, No. C1-94-1409, 1994 WL 586962 (Minn. Ct. App. Oct. 25,<br />
1994) (unpublished) (finding an utter lack <strong>of</strong> power to control sexual impulses where <strong>of</strong>fender<br />
exhibited recent inappropriate behavior while incarcerated <strong>and</strong> had not successfully received sex<br />
<strong>of</strong>fender treatment); In re Mayfield, No. C8-94-1407, 1994 WL 593885 (Minn. Ct. App. Nov. 1,<br />
1994) (utter lack <strong>of</strong> power to control sexual impulses found where <strong>of</strong>fender exhibited lack <strong>of</strong><br />
judgment, emotional instability <strong>and</strong> impulsive behavior while incarcerated <strong>and</strong> committed<br />
numerous sexual assaults immediately upon release from prison; court also found lack <strong>of</strong> control<br />
based upon commission <strong>of</strong> multiple sexual assaults that included force <strong>and</strong> threats to kill,<br />
choosing his victims by chance, <strong>and</strong> failing to complete chemical dependency treatment even<br />
though his chemical dependency caused his impulsivity); In re Edstrom, No. C2-95-2448, 1996<br />
WL 132141 (Minn. Ct. App. Mar. 26, 1996) (unpublished), summ. aff’d (Minn. Jan. 21, 1997)<br />
16
II. SEXUALLY DANGEROUS PERSON COMMITMENTS.<br />
A. Enactment Of <strong>Sexual</strong>ly Dangerous Person <strong>Commitment</strong> Law.<br />
Because <strong>of</strong> the various challenges to the constitutionality <strong>and</strong> application <strong>of</strong> the PP law,<br />
the 1994 Legislature created a task force “to study issues relating to the confinement <strong>of</strong> sexual<br />
predators, including commitment <strong>of</strong> psychopathic personalities.” 111 The Legislature met in<br />
special session on August 31, 1994, <strong>and</strong> enacted statutory amendments essentially as<br />
recommended by the Task Force. 112 The legislation added an additional commitment category to<br />
Minnesota’s <strong>Civil</strong> <strong>Commitment</strong> <strong>and</strong> Treatment Act, Minn. Stat. ch. 253B. The new commitment<br />
category was for a “sexually dangerous person” or “SDP”: 113<br />
Subd. 18c. SEXUALLY DANGEROUS PERSON. (a) A “sexually<br />
dangerous person” means a person who:<br />
(1) has engaged in a course <strong>of</strong> harmful sexual conduct as defined in<br />
subdivision 7a;<br />
(2) has manifested a sexual, personality, or other mental disorder or<br />
dysfunction; <strong>and</strong><br />
(3) as a result, is likely to engage in acts <strong>of</strong> harmful sexual conduct as<br />
defined in subdivision 7a.<br />
(b) For purposes <strong>of</strong> this provision, it is not necessary to prove that the<br />
person has an inability to control the person’s sexual impulses.<br />
The term “harmful sexual conduct” used in the definition <strong>of</strong> “sexually dangerous person” is also<br />
defined in the statute: 114<br />
Subd. 7a. HARMFUL SEXUAL CONDUCT. (a) “Harmful sexual<br />
conduct” means sexual conduct that creates a substantial likelihood <strong>of</strong> serious<br />
physical or emotional harm to another.<br />
(b) There is a rebuttable presumption that conduct described in the<br />
following provisions creates a substantial likelihood that a victim will suffer<br />
(utter lack <strong>of</strong> power to control found in the automatic nature <strong>of</strong> his re<strong>of</strong>fending including<br />
re<strong>of</strong>fending in a similar way after 15 years <strong>of</strong> incarceration <strong>and</strong> treatment; court rejected good<br />
behavior in prison as evidence <strong>of</strong> self-control where examiner testified that it might show<br />
successful adaptation to prison but not a distinct change in his personality); In re Meyer, No. C7-<br />
96-981, 1996 WL 537500 (Minn. Ct. App. Sept. 24, 1996) (unpublished) (utter lack <strong>of</strong> control<br />
found where <strong>of</strong>fender discontinued treatment <strong>and</strong> while in treatment he was so overwhelmed by<br />
his sexual urges that he still engaged in inappropriate sexual behavior; this was described by one<br />
expert as the “supreme index” <strong>of</strong> being out <strong>of</strong> control).<br />
111 1994 Minn. Laws, ch. 636, art. 8, § 20.<br />
112 1994 Minn. Laws, 1st Spec. Sess., ch. 1.<br />
113 Minn. Stat. § 253B.02, subd. 18b (1994) (the SPP <strong>and</strong> SDP laws were renumbered by 1997<br />
Minn. Laws, ch. 217, art. 1, §§ 3 <strong>and</strong> 4 as 253B.02, subd. 18b <strong>and</strong> 18c, respectively).<br />
114 Id., subd. 7a.<br />
17
serious physical or emotional harm: [statutory provisions defining criminal sexual<br />
conduct, 1st-4th degrees]. If the conduct was motivated by the person’s sexual<br />
impulses or was part <strong>of</strong> a pattern <strong>of</strong> behavior that had criminal sexual conduct as a<br />
goal, the presumption also applies to [statutory provisions defining Murder;<br />
Manslaughter; Assault, lst-3d degrees; Robbery; Kidnapping; False<br />
Imprisonment; Incest; Witness Tampering; Arson, 1st degree; Burglary, 1st<br />
degree; Terroristic Threats; Harassment <strong>and</strong> Stalking].<br />
A review <strong>of</strong> the SDP commitment category shows that it contains the same three<br />
elements as the Pearson st<strong>and</strong>ard, i.e., (1) a history <strong>of</strong> harmful sexual conduct, (2) a disorder, <strong>and</strong><br />
(3) the resulting likelihood <strong>of</strong> future harmful sexual conduct. However, the SDP commitment<br />
st<strong>and</strong>ard made two significant changes.<br />
First, in response to the Linehan I decision, 115 the newer statute defined the disorder<br />
differently than either the PP statute or the Pearson decision. The SDP law requires the person<br />
to have a “sexual, personality or other mental disorder or dysfunction.” (That is, the person must<br />
have a mental disorder or dysfunction; sexual <strong>and</strong> personality disorders are two types <strong>of</strong> mental<br />
disorders that may be included.) The SDP statute makes it clear that this definition <strong>of</strong> disorder,<br />
<strong>and</strong> not the utter-inability-to-control st<strong>and</strong>ard from Pearson, applies. The language <strong>of</strong> the newer<br />
statute was drafted in consultation with mental health pr<strong>of</strong>essionals, <strong>and</strong> was written in<br />
contemporary language used by such persons, rather than the archaic language <strong>of</strong> the PP statute<br />
<strong>and</strong> Pearson. 116<br />
The second significant change brought about by the newer statute responded to the state<br />
supreme court’s decision in In re Rickmyer. 117 While the definition <strong>of</strong> “harmful sexual conduct”<br />
is taken essentially verbatim from Rickmyer, 118 the new statute creates a rebuttable presumption<br />
that conduct that would violate certain criminal statutes is sufficiently harmful to support civil<br />
commitment. This addressed the concern that the courts in Rickmyer <strong>and</strong> In re Schweninger 119<br />
had not given sufficient weight to the long-term, serious emotional harm caused to children by<br />
the acts <strong>of</strong> repetitive pedophiles.<br />
B. Course Of Harmful <strong>Sexual</strong> Conduct.<br />
The first requirement <strong>of</strong> the SDP law is that the person has “engaged in a course <strong>of</strong><br />
harmful sexual conduct” that “creates a substantial likelihood <strong>of</strong> serious physical or emotional<br />
harm to another.” 120 Because the st<strong>and</strong>ard for harmfulness relates to the st<strong>and</strong>ard under the SPP<br />
law, it will be discussed in section III.A., below. What conduct is “sexual” conduct will also be<br />
115<br />
In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).<br />
116<br />
Linehan III, 557 N.W.2d 171, 185 (Minn. 1996), vacated <strong>and</strong> rem<strong>and</strong>ed, 522 U.S. 1011<br />
(1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).<br />
117<br />
In re Rickmyer, 519 N.W.2d 188 (Minn. 1994).<br />
118<br />
Id. at 190.<br />
119<br />
In re Schweninger, 520 N.W.2d 446 (Minn. Ct. App. 1994).<br />
120<br />
Minn. Stat. §§ 253B.02, subds. 18c(a)(1) <strong>and</strong> 7a (2009).<br />
18
addressed in that section. But there is also an issue as to what is a “course” <strong>of</strong> harmful sexual<br />
conduct.<br />
The appellate court has upheld a commitment based on only two sexual assaults, but<br />
declined to set a “numerical limit” on the term “course.” 121 Indeed, in one case the court held<br />
that the person’s two sexual <strong>of</strong>fenses satisfied not only the “course” requirement <strong>of</strong> the SDP law,<br />
but also the “habitual course” requirement <strong>of</strong> the SPP law. 122<br />
The appellate court has held that a person’s sexual abuse <strong>of</strong> his sister over an eight-year<br />
period, <strong>and</strong> a single instance <strong>of</strong> sexual abuse <strong>of</strong> a 12-year-old girl during a later period, was<br />
sufficient to constitute a course <strong>of</strong> harmful sexual conduct. 123 In another case, the court observed<br />
that the person’s “many repeated, emotionally scarring assaults on [one] six-year-old victim<br />
alone constitute a course <strong>of</strong> harmful sexual conduct.” 124<br />
The appellate court has observed that similarity, number <strong>of</strong> incidents <strong>and</strong> re<strong>of</strong>fense soon<br />
after release may be considered in determining the existence <strong>of</strong> a “course” <strong>of</strong> harmful sexual<br />
conduct. 125 However, the SDP law does not require that the incidents <strong>of</strong> harmful sexual conduct<br />
be similar, so that dissimilar incidents may nonetheless constitute a “course” <strong>of</strong> such conduct. 126<br />
Nonetheless, similarity <strong>of</strong> the incidents may help to establish the course <strong>of</strong> conduct. 127<br />
“[T]he incidents that establish the course will have occurred over a period <strong>of</strong> time <strong>and</strong><br />
need not be recent.” 128 Recency may relate to the likelihood <strong>of</strong> re<strong>of</strong>fense, but does not affect<br />
121 In re Taylor, No. CX-02-1102, 2002 WL 31890941, at *6 (Minn. Ct. App. Dec. 31, 2002)<br />
(unpublished); see also In re Braylock, No. A06-1053, 2006 WL 3409875 (Minn. Ct. App.<br />
Nov. 28, 2006) (unpublished) (noting that trial court had found two incidents within two years to<br />
constitute “course”).<br />
122 In re Rask, No. A08-1312, A08-1551, 2009 WL 511943, at *2, 4 (Minn. Ct. App. Feb. 26,<br />
2009) (unpublished).<br />
123 In re Banks, No. C5-99-217, 1999 WL 451207, at *2 (Minn. Ct. App. July 6, 1999)<br />
(unpublished), appeal after rem<strong>and</strong>, No. C3-00-272, 2000 WL 1146740 (Minn. Ct. App. Aug.<br />
15, 2000) (unpublished).<br />
124 In re Woltjer, No. A06-2355, 2007 WL 1675030, at *4 (Minn. Ct. App. Jun. 12, 2007)<br />
(unpublished).<br />
125 Id.<br />
126 In re Stone, 711 N.W.2d 831, 837 (Minn. Ct. App. 2006).<br />
127 In re Fisher, No. A05-579, 2005 WL 2209079, at *3 (Minn. Ct. App. Sept. 13, 2005)<br />
(unpublished).<br />
128 In re Stone, 711 N.W.2d 831, 837-38 (Minn. Ct. App. 2006); see also Linehan I, 518 N.W.2d<br />
609, 613-14 (Minn. 1994) (habitual course <strong>of</strong> misconduct factor met even though last sex <strong>of</strong>fense<br />
occurred in 1975 <strong>and</strong> petition filed in 1992; gap <strong>of</strong> time relevant in determining likelihood <strong>of</strong><br />
future harm, not habitual nature <strong>of</strong> the conduct); Linehan III, 544 N.W.2d at 312-13 (SDP law<br />
“contains no requirement <strong>of</strong> a recent overt act” to meet “course <strong>of</strong> harmful sexual conduct”<br />
requirement; remoteness <strong>of</strong> sexual conduct affects likelihood <strong>of</strong> future harm <strong>and</strong> not whether acts<br />
constitute course <strong>of</strong> harmful sexual conduct); In re Ramey, 648 N.W.2d 260, 270 (Minn. App.<br />
2002) (holding that acts occurring 20 years before commitment may be considered).<br />
19
whether the acts constitute a “course” <strong>of</strong> conduct. 129 Moreover, a period in which the person did<br />
not re<strong>of</strong>fend does not preclude a determination that his acts were a “course.” 130 This is<br />
particularly true where the person was incarcerated for a substantial part <strong>of</strong> the “gap” period. 131<br />
The “incidents establishing a course <strong>of</strong> conduct may extend over a long period <strong>of</strong><br />
time.” 132 But even where all <strong>of</strong> the person’s sexual assaults occurred in a one-month period 15<br />
years earlier, the “course” requirement may be satisfied. 133<br />
Conduct committed as a juvenile may satisfy the requirement <strong>of</strong> a “course” <strong>of</strong> harmful<br />
sexual conduct. 134 There is no support for the argument that acts must be “knowing” or<br />
“intentional,” or that the person must know his acts are wrong, in order to qualify for<br />
commitment; indeed, the possibility the person did not know his acts were wrong may support<br />
the need for commitment. 135<br />
Where the person has committed acts meeting the definition <strong>of</strong> harmful sexual conduct,<br />
other acts may be considered as part <strong>of</strong> the course even though those acts do not themselves meet<br />
the harmfulness st<strong>and</strong>ard. 136 Prison related disciplinary infractions may be considered part <strong>of</strong> a<br />
course <strong>of</strong> harmful sexual conduct. 137<br />
The “course” requirement in the SDP law is similar to the first element <strong>of</strong> the SPP law,<br />
but eliminates the “habitual” requirement in the latter law. Therefore, any course <strong>of</strong> conduct<br />
satisfying the requirements <strong>of</strong> the SPP law, as explained in section I.B., above, will also satisfy<br />
129 Linehan III, 544 N.W.2d at 312-13; In re Brown, No. A05-1500, 2006 WL 44354, at *4<br />
(Minn. Ct. App. Jan. 10, 2006) (unpublished); In re Yazzie, No. A05-750, 2005 WL 2130605, at<br />
*2 (Minn. Ct. App. Sept. 6, 2005).<br />
130 Stone, 711 N.W.2d at 838, citing In re Robb, 622 N.W.2d 564, 573-74 (Minn. Ct. App. 2001).<br />
131 In re Green, No. A06-2272, 2007 WL 1532156, at *4 (Minn. Ct. App. May 29, 2007)<br />
(unpublished).<br />
132 See, e.g., In re Swedeen, No. A07-805, 2007 WL 2770440, at *5 (Minn. Ct. App. Sept. 25,<br />
2007) (unpublished); In re Alverson, No. A06-1567, 2007 WL 447159, at *5 (Minn. Ct. App.<br />
Feb. 13, 2007) (unpublished).<br />
133 In re Lindsey, No. A07-80, 2007 WL 1323597, at *2-3 (Minn. Ct. App. May 8, 2007)<br />
(unpublished).<br />
134 In re Black, No. A06-2262, 2007 WL 1470592, at *4 (Minn. Ct. App. May 22, 2007)<br />
(unpublished).<br />
135 Id.; see also In re Folson, No. A07-1916, 2008 WL 853597 (Minn. Ct. App. Apr. 1, 2008)<br />
(unpublished) (saying, “The fact that appellant committed his first <strong>of</strong>fense when he was a<br />
juvenile is immaterial <strong>and</strong> does not minimize the <strong>of</strong>fense”).<br />
136 In re Alverson, No. A06-1567, 2007 WL 447159, at *6 (Minn. Ct. App. Feb. 13, 2007)<br />
(unpublished) (person’s “returning to his cycle” <strong>of</strong> sexual assault by contacting minors on the<br />
internet, using alcohol, accessing <strong>and</strong> possessing pornography could be considered part <strong>of</strong><br />
“course,” even though it was not completed harmful sexual conduct).<br />
137 In re Green, No. A06-2272, 2007 WL 1532156, at *4 (Minn. Ct. App. May 29, 2007)<br />
(unpublished).<br />
20
the SDP law. Thus, to establish a course <strong>of</strong> sexual misconduct under the SDP law would not<br />
require evidence <strong>of</strong> multiple victims. 138<br />
As with the similar requirement <strong>of</strong> the SPP law, it is clear under the SDP law that<br />
convictions for the sexual acts are not required. 139 Our federal district court has held that the<br />
federal constitution does not require prior criminal convictions, or even that the person’s conduct<br />
that supports commitment would violate criminal statutes. 140 The court <strong>of</strong> appeals has held that a<br />
course <strong>of</strong> harmful sexual conduct was proven even where the person had no criminal convictions<br />
for his conduct. 141 Because <strong>of</strong> the higher st<strong>and</strong>ard <strong>of</strong> pro<strong>of</strong> in criminal cases, an act may be<br />
proven in a civil commitment case even though the person has been acquitted <strong>of</strong> the act in a<br />
criminal prosecution. 142<br />
On appeal, the appellate court can disregard some incidents <strong>of</strong> sexual misconduct found<br />
by the trial court, but nonetheless determine that the remaining incidents are sufficient to satisfy<br />
the “course” requirement. 143<br />
C. Mental Disorder.<br />
1. The statutory requirement.<br />
The second requirement <strong>of</strong> the SDP law is the mental disorder requirement, specifically<br />
that the person “has manifested a sexual, personality, or other mental disorder or dysfunction.” 144<br />
Although the requirement is stated in the past tense, the courts have clarified that the person must<br />
currently have such a disorder. 145 The Minnesota Supreme Court has recognized that the statute<br />
was written with the aid <strong>of</strong> psychiatrists <strong>and</strong> psychologists <strong>and</strong> is intended to use the terms<br />
“sexual disorder,” “personality disorder” <strong>and</strong> “other mental disorder” as those terms are used by<br />
138 In re Gleason, No. C2-97-2194, 1998 WL 218223 (Minn. Ct. App. May 5, 1998)<br />
(unpublished) (although Gleason’s sexual misconduct involved more than one person, the law<br />
does not require multiple victims in order to meet the “habitual course” st<strong>and</strong>ard).<br />
139 In re Stone, 711 N.W.2d 831, 837 (Minn. Ct. App. 2006); In re Jackson, 658 N.W.2d 219,<br />
226 (Minn. Ct. App. 2003); In re Ramey, 648 N.W.2d 260, 268 (Minn. Ct. App. 2002); In re<br />
Moore, No. A09-623, 2009 WL 2747980 (Minn. Ct. App. Sept. 1, 2009) (unpublished)<br />
(upholding commitment where person had no convictions for harmful sexual behavior, but<br />
committing court found that those acts occurred).<br />
140 Martin v. Mooney, No. 06-1605 DSD/RLE, 2007 WL 1306409, at *13-14 (D. Minn. May 3,<br />
2007).<br />
141 In re Moore, No. A09-0623, 2009 WL 2747980, at *2-3 (Minn. Ct. App. Sept. 1, 2009),<br />
review denied (Minn. Nov. 17, 2009) (unpublished).<br />
142 In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (involving mentally ill <strong>and</strong> dangerous<br />
commitment).<br />
143 In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)<br />
(unpublished).<br />
144 Minn. Stat. § 253B.02, subd. 18c(2) (2009).<br />
145 In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999); In re Fugelseth,<br />
No. A03-1330, 2004 WL 422695, at *6 (Minn. Ct. App. Mar. 9, 2004) (unpublished).<br />
21
mental health pr<strong>of</strong>essionals, with particular reference to the American Psychiatric Association’s<br />
Diagnostic <strong>and</strong> Statistical Manual <strong>of</strong> Mental Disorders (currently “DSM-IV-TR”). 146<br />
The words “or dysfunction” were included in the statutory definition to address the<br />
situation where a person may display the essential features <strong>of</strong> a recognized disorder, but not<br />
satisfy all <strong>of</strong> the diagnostic criteria for the disorder in the DSM. However, because the current<br />
edition <strong>of</strong> the DSM allows the evaluator to use clinical judgment to apply a diagnosis to a person<br />
even though the person may not technically satisfy all <strong>of</strong> the criteria for the disorder, 147 the term<br />
“dysfunction” may now be superfluous. There is no appellate decision under the SDP law where<br />
the appellant has been determined to have a dysfunction, but not a disorder.<br />
It is not important that the experts disagree about the proposed patient’s precise<br />
diagnosis, where they agree that he has a disorder that meets the requirement <strong>of</strong> the statute. 148<br />
Even though the SDP provision <strong>of</strong> the commitment act incorporates the procedures for<br />
commitment <strong>of</strong> mentally ill <strong>and</strong> dangerous persons, the commitment act does not require that a<br />
person committed as SDP be “mentally ill.” 149 Similarly, the fact that the person was found to be<br />
criminally responsible (i.e., not qualifying for the insanity defense) or competent to st<strong>and</strong> trial in<br />
a criminal case does not contradict a finding that he meets the disorder requirement <strong>of</strong> the SDP<br />
law. 150<br />
In Linehan III, Linehan argued to the state supreme court that an antisocial personality<br />
disorder (“APD”) is per se an invalid basis for commitment. He argued that reliance on this<br />
disorder is circular because, he asserted, the diagnosis is based simply on the person’s criminal<br />
behavior. 151 The supreme court held that Linehan’s APD could constitutionally support civil<br />
commitment, noting that “the purpose <strong>and</strong> effect <strong>of</strong> the diagnostic criteria in DSM-IV is to<br />
identify an underlying mental disorder that accounts for behavior.” 152 The court observed that<br />
146<br />
Linehan III, 557 N.W.2d 171, 185 (Minn. 1996), vacated <strong>and</strong> rem<strong>and</strong>ed, 522 U.S. 1011<br />
(1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).<br />
147<br />
American Psychiatric Ass’n, Diagnostic & Statistical Manual <strong>of</strong> Mental Disorders, Fourth<br />
Edition, Text Revision xxxii (2000).<br />
148<br />
In re Luhmann, No. A07-912, 2007 WL 2417341, at *3 (Minn. Ct. App. Aug. 28, 2007)<br />
(unpublished) (pedophilia vs. paraphilia); In re Hilton, No. A06-2261, 2007 WL 1532151, at *7<br />
(Minn. Ct. App. May 29, 2007) (unpublished) (three <strong>of</strong> four examiners reached similar<br />
diagnoses).<br />
149<br />
In re Holden, No. C1-00-2229, 2001 WL 683004, at *2 (Minn. Ct. App. June 19, 2001)<br />
(unpublished); In re Becker, No. C3-96-766, 1997 WL 470170 (Minn. Ct. App. Aug. 19, 1997)<br />
(unpublished).<br />
150<br />
Linehan III, 557 N.W.2d at 183 (criminal responsibility); In re Holden, No. C1-00-2229, 2001<br />
WL 683004, at *6 (Minn. Ct. App. June 19, 2001) (unpublished) (criminal competency).<br />
151<br />
557 N.W.2d at 184.<br />
152<br />
Id. at 185 (emphasis in original); see also In re Meyer, No. A07-460, 2007 WL 2770186, at<br />
*2 (Minn. Ct. App. Sept. 25, 2007) (unpublished).<br />
22
the trial court had relied not only on Linehan’s past behavior, but also his current mental<br />
processes, in determining that he had an APD. 153<br />
In another case, the appellate court rejected the argument that the person’s disorder must<br />
be sexual in nature, concluding that a personality disorder may be sufficient. 154 A “not otherwise<br />
specified,” or “NOS,” qualifier on a diagnosis does not mean that the diagnosis is less valid or<br />
significant. 155 The court has held that “personality disorder NOS” is sufficient to satisfy the<br />
mental disorder element <strong>of</strong> the SDP law. 156<br />
The SDP law does not require that the person be diagnosed as a “sociopath” on the<br />
PCL-R in order to qualify for commitment. 157<br />
In In re McRae, the proposed patient asserted that he did not satisfy the mental disorder<br />
requirement because his condition had a significant component <strong>of</strong> chemical abuse <strong>and</strong><br />
dependence. 158 The court <strong>of</strong> appeals rejected his argument, noting that there was no authority to<br />
support it.<br />
The following section discusses the requirement <strong>of</strong> Linehan IV that the person’s mental<br />
“disorder or dysfunction does not allow [him] to adequately control [his] sexual impulses.” 159 In<br />
In re Fugelseth, the proposed patient argued that the mental disorders with which he was<br />
diagnosed—pedophilia <strong>and</strong> a personality disorder—did not necessarily involve an inability to<br />
control sexual behavior, <strong>and</strong> therefore the requirement <strong>of</strong> Linehan IV that his “disorder or<br />
dysfunction does not allow” him to adequately control his sexual impulses was not satisfied. 160<br />
The court <strong>of</strong> appeals rejected that argument, however, because the evidence showed that, in<br />
Fugelseth’s case, the disorders made him unable to adequately control his impulses. 161<br />
2. Inability to adequately control.<br />
In In re Linehan (Linehan IV), 162 in order to uphold the constitutionality <strong>of</strong> the SDP law,<br />
the Minnesota Supreme Court interpreted the law to require that the person’s mental “disorder or<br />
153 Id.<br />
154 In re Krych, No. A07-2069, 2008 WL 1800140, at *3 (Minn. Ct. App. Apr. 22, 2008)<br />
(unpublished).<br />
155 In re Giishig, No. A07-0616, 2007 WL 2601423, at *11 (Minn. Ct. App. Sept. 11, 2007)<br />
(unpublished) (addressing person diagnosed with “paraphilia NOS”).<br />
156 Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475, at *4 (Minn. Ct. App. July 1, 2008)<br />
(unpublished), review denied (Minn. Sept. 23, 2008).<br />
157 In re Olson, No. A06-1601, 2007 WL 509693, at *3 n.1 (Minn. Ct. App. Feb. 20, 2007)<br />
(unpublished).<br />
158 In re McRae, No. A04-2028, 2005 WL 646801, at *2 (Minn. Ct. App. Mar. 22, 2005)<br />
(unpublished).<br />
159 In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999).<br />
160 In re Fugelseth, No. A03-1330, 2004 WL 422695, at *9 (Minn. Ct. App. Mar. 9, 2004)<br />
(unpublished).<br />
161 Id.<br />
162 Linehan IV, 594 N.W.2d 867 (Minn. 1999).<br />
23
dysfunction does not allow [him] to adequately control [his] sexual impulses” or, put differently,<br />
“does not allow the person to adequately control his sexual behavior.” 163 The court interpreted<br />
the statute to include this requirement in order to uphold the statute under the United States<br />
Supreme Court’s decision in Kansas v. Hendricks. 164<br />
The state court <strong>of</strong> appeals has held that the st<strong>and</strong>ard to be applied after Linehan IV is the<br />
“does not allow him to adequately control” st<strong>and</strong>ard, <strong>and</strong> not a “difficult if not impossible to<br />
control” st<strong>and</strong>ard or a “special <strong>and</strong> serious” lack <strong>of</strong> control st<strong>and</strong>ard based on other language in<br />
Hendricks. 165<br />
As explained in section V.B.5., below, however, in In re Crane in early 2002, the U.S.<br />
Supreme Court held that, in order to civilly commit a person as sexually dangerous, “there must<br />
be pro<strong>of</strong> <strong>of</strong> serious difficulty in controlling behavior.” 166 As discussed in section V.B.6.,<br />
following Crane the state court <strong>of</strong> appeals <strong>and</strong> the Eighth Circuit have held that committing<br />
courts need not apply the specific Crane language; rather, Crane provides the constitutional legal<br />
st<strong>and</strong>ard by which appellate courts evaluate the adequacy <strong>of</strong> the State’s commitment formula.<br />
Thus, it is now clear that trial courts can continue to apply the Linehan IV “does not allow him to<br />
adequately control his sexual impulses [or behavior]” st<strong>and</strong>ard.<br />
On appeal, an SDP commitment may be sustained even though the trial court’s findings<br />
<strong>and</strong> conclusions did not refer to “inability to control,” so long as the underlying factual record<br />
shows an inability to adequately control sexual behavior. 167 Moreover, because satisfaction <strong>of</strong><br />
the “inability to adequately control” commitment st<strong>and</strong>ard presents a legal issue, not a factual<br />
one, the appellate court may overrule the trial court’s determination that the proposed patient did<br />
not possess the required inability to control. 168<br />
Linehan IV makes it clear that the st<strong>and</strong>ard is less stringent than the “utter lack <strong>of</strong> power<br />
to control” requirement in Pearson. 169 In finding that the district court’s findings in Linehan’s<br />
case supported a conclusion that Linehan lacked adequate control, the supreme court cited<br />
findings related to Linehan’s impulsiveness, his inability to delay masturbation in response to<br />
stimulation by his young step-daughter, his commission <strong>of</strong> <strong>of</strong>fenses while drunk, his continuing<br />
163<br />
Id. at 876 & n.4 (emphasis added).<br />
164<br />
Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997).<br />
165<br />
In re Taylor, No. CX-02-1102, 2002 WL 31890941, at *4 (Minn. Ct. App. Dec. 31, 2002)<br />
(unpublished); In re Prather, No. C0-00-987, 2000 WL 1778321, at *2 (Minn. Ct. App. Nov. 21,<br />
2000) (unpublished), review denied (Minn. 2001), cert. denied, 532 U.S. 1045 (2001); In re<br />
Martinelli, No. C4-00-748, 2000 WL 1285430, at *2 (Minn. Ct. App. Sept. 12, 2000)<br />
(unpublished), review denied (Minn. 2000), vacated <strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 1160, 122 S. Ct.<br />
1171 (2002), aff’d after rem<strong>and</strong>, 649 N.W.2d 886 (Minn. Ct. App. 2002).<br />
166<br />
Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002) (emphasis added).<br />
167<br />
In re Fox, No. A03-1019, 2004 WL 61111, at *3-4 (Minn. Ct. App. Jan. 13, 2004)<br />
(unpublished).<br />
168<br />
In re Martin, 661 N.W.2d 632, 638-40 (Minn. Ct. App. 2003) (reversing trial court’s<br />
determination that inability to control had not been proved).<br />
169<br />
See also In re Bartholomew, No. A07-1892, 2008 WL 853593, at *2 (Minn. Ct. App. Apr. 1,<br />
2008) (unpublished).<br />
24
aggressive tendencies <strong>and</strong> his antisocial personality disorder diagnosis. 170 In In re Fisher, the<br />
court <strong>of</strong> appeals summarized what it believed were the factors in Linehan IV showing lack <strong>of</strong><br />
adequate control: “(1) a recent display <strong>of</strong> sexual impulsiveness; (2) concealing sexual<br />
misconduct; (3) abusing substances that heighten sexual impulsiveness; (4) aggressive behavior;<br />
<strong>and</strong> (5) the particular symptoms <strong>of</strong> the mental disorder.” 171 The court <strong>of</strong> appeals has held that the<br />
factors that showed lack <strong>of</strong> adequate control in Linehan IV are sufficient to make that showing,<br />
but those particular factors are not necessary to show lack <strong>of</strong> adequate control in other cases. 172<br />
In In re Ramey, the court <strong>of</strong> appeals explained the meaning <strong>of</strong> “adequate control”:<br />
Taken in the larger context <strong>of</strong> the holding <strong>of</strong> Linehan IV, the meaning <strong>of</strong> the<br />
phrase “adequate control” is clear; an <strong>of</strong>fender’s history <strong>of</strong> harmful sexual<br />
conduct <strong>and</strong> a high likelihood <strong>of</strong> future dangerousness, coupled with a mental<br />
illness or dysfunction, demonstrates that an <strong>of</strong>fender will find it difficult to<br />
control behavior. 173<br />
Evidence that a person is unable to adequately control his sexual impulses may<br />
“substantially overlap” the evidence <strong>of</strong> the other SDP requirements, including course <strong>of</strong> harmful<br />
sexual conduct, mental disorder <strong>and</strong> likelihood <strong>of</strong> sexual re<strong>of</strong>fense. 174 Indeed, in one case the<br />
court <strong>of</strong> appeals said, “In other words, if there is clear <strong>and</strong> convincing evidence that appellant is<br />
highly likely to re<strong>of</strong>fend, then there is clear <strong>and</strong> convincing evidence that he is unable to control<br />
his sexual impulses. 175<br />
The SDP law, as interpreted in Linehan IV, does not require a finding that the person<br />
completely lacks the ability to control his sexual behavior. 176 It is not necessary that the person<br />
lack adequate control at all times, if at some times he lacks such control. 177 And the fact that<br />
there was a 10-year gap in the person’s sex <strong>of</strong>fenses does not show that he had adequate control<br />
over his sexual behavior. 178 Similar, an extended time since the person’s last <strong>of</strong>fense does not<br />
preclude a finding that he lacks adequate control. 179<br />
170<br />
Linehan IV, 594 N.W.2d at 876-77<br />
171<br />
In re Fisher, No. A05-579, 2005 WL 2209079, at *5 (Minn. Ct. App. Sept. 13, 2005)<br />
(unpublished).<br />
172<br />
In re Fageroos, No. A06-1947, 2007 WL 509748, at *3 (Minn. Ct. App. Feb. 20, 2007)<br />
(unpublished).<br />
173<br />
In re Ramey, 648 N.W.2d 260, 268 (Minn. Ct. App. 2002).<br />
174<br />
In re Lindsey, No. A07-80, 2007 WL 1323597, at *5 (Minn. Ct. App. May 8, 2007)<br />
(unpublished).<br />
175<br />
In re Garza, No. A08-0288, 2008 WL 2889700, at *8 (Minn. Ct. App. July 29, 2008)<br />
(unpublished).<br />
176<br />
In re White, No. A05-1474, 2005 WL 3112024, at *1 (Minn. Ct. App. Nov. 22, 2005).<br />
(unpublished).<br />
177<br />
In re Coker, No. C7-00-873, 2000 WL 1617874, at *1-2 (Minn. Ct. App. Oct. 31, 2000)<br />
(unpublished).<br />
178 In re Robb, 622 N.W.2d 564, 573 (Minn. Ct. App. 2001).<br />
179 In re Brown, No. A05-1500, 2006 WL 44354, at *5 (Minn. Ct. App. Jan. 10, 2006)<br />
(unpublished).<br />
25
Where the proposed patient’s sexual assaults were related to use <strong>of</strong> alcohol, the fact that<br />
he relapsed in drug <strong>and</strong> alcohol used despite his desire to refrain from such use helped<br />
demonstrate inability to adequately control. 180 A proposed patient’s inadequate ability to control<br />
his sexual behavior was shown where his bipolar disorder <strong>and</strong> pedophilia clouded his ability to<br />
control his sexual behavior <strong>and</strong> where he had a long history <strong>of</strong> impulsive <strong>and</strong> noncompliant<br />
behavior going back to childhood. 181<br />
In some cases, the court <strong>of</strong> appeals has cited cases concerning the “utter lack <strong>of</strong> power to<br />
control” requirement <strong>of</strong> the SPP law, <strong>and</strong> the factors described in those cases, in determining<br />
whether a person lacks adequate ability to control his sexual behavior under the Linehan IV<br />
st<strong>and</strong>ard. Specifically, the court has cited factors <strong>of</strong> failing to accept that the person has a<br />
problem, <strong>and</strong> refusing sex <strong>of</strong>fender treatment. 182<br />
III. COMMITMENT ISSUES UNDER BOTH STATUTES.<br />
While many <strong>of</strong> the commitment requirements <strong>of</strong> the SPP statute differ from those <strong>of</strong> the<br />
SDP law, there are several issues that are either the same under the two statutes or that are<br />
sufficiently related so that it makes sense to discuss them together.<br />
A. Harmful Nature Of <strong>Sexual</strong> Misconduct.<br />
1. SPP Statute.<br />
a. Rickmyer st<strong>and</strong>ard for harmfulness.<br />
The Minnesota appellate courts have made clear that the SPP commitment law does not<br />
apply to every person who commits a sex <strong>of</strong>fense. Initially, there was no effort to define the<br />
nature <strong>of</strong> the harmful sexual misconduct that would be required for commitment. Rather the<br />
Pearson court merely cautioned against an overbroad application <strong>of</strong> the statute:<br />
It would not be reasonable to apply the provisions <strong>of</strong> the statute to every person<br />
guilty <strong>of</strong> sexual misconduct nor even to persons having strong sexual propensities.<br />
Such a definition would . . . make the act impracticable <strong>of</strong> enforcement <strong>and</strong>,<br />
perhaps, unconstitutional in its application. 183<br />
The supreme court first articulated a st<strong>and</strong>ard for harmfulness in 1994 in In re<br />
Rickmyer. 184 Rickmyer had exposed himself to some boys in a motel room, touched children’s<br />
180<br />
Id. at *6<br />
181<br />
In re Prather, No. C0-00-987, 2000 WL 1778321, at *3 (Minn. Ct. App. Nov. 21, 2000)<br />
(unpublished).<br />
182<br />
In re Coker, No. C7-00-873, 2000 WL 1617874, at *2 (Minn. Ct. App. Oct. 31, 2000)<br />
(unpublished) (citing In re Irwin, 529 N.W.2d 366, 375 (Minn. Ct. App. 1995) <strong>and</strong> In re Pirkl,<br />
531 N.W.2d 902, 907 (Minn. Ct. App. 1995)); In re Banks, No. C3-00-272, 2000 WL 1146740,<br />
at *3 (Minn. Ct. App. Aug. 15, 2000) (unpublished) (citing Irwin).<br />
183<br />
Pearson, 287 N.W. at 302.<br />
184<br />
In re Rickmyer, 519 N.W.2d 188 (Minn. 1994).<br />
26
uttocks at a playground (at least sometimes inside their clothing), touched a boy’s private parts<br />
(it is unclear whether this was under the boy’s clothing) <strong>and</strong> “spanked” a number <strong>of</strong> kids at the<br />
playground. 185 After concluding that Rickmyer’s sexual conduct did not constitute the type <strong>of</strong><br />
harm addressed by the statute, the court said:<br />
There may be instances where a pedophile’s pattern <strong>of</strong> sexual misconduct is <strong>of</strong><br />
such an egregious nature that there is a substantial likelihood <strong>of</strong> serious physical<br />
or mental harm being inflicted on the victims such as to meet the requirements for<br />
commitment as a psychopathic personality. 186<br />
Nonetheless, the court reversed Rickmyer’s commitment holding that his “unauthorized sexual<br />
‘touchings’ <strong>and</strong> ‘spankings,’ while repellent, do not constitute the kind <strong>of</strong> injury, pain, ‘or other<br />
evil’ that is contemplated by the psychopathic personality statute.” 187<br />
In In re Scott, 188 the court <strong>of</strong> appeals rejected the argument (under both the SPP <strong>and</strong> SDP<br />
laws) that the appellant’s sexual assaults were not “sexual misconduct” because they were<br />
motivated by financial gain in promoting prostitution, rather than sexual gratification, stating that<br />
it was “both a reasonable <strong>and</strong> compelling inference” that Scott’s assaults were motivated at least<br />
in part by his sexual gratification. 189<br />
b. Conduct without completed sexual assault: HIV status,<br />
exhibitionism, exposing, kidnapping.<br />
The SPP statute’s requirement <strong>of</strong> sexual misconduct deals with behavior, not merely the<br />
person’s health condition or status. Absent some form <strong>of</strong> sexual misconduct directed towards<br />
another person, regardless <strong>of</strong> the clear risk <strong>of</strong> serious harm presented by the person, the statute<br />
has been interpreted to not apply. The court <strong>of</strong> appeals refused to apply the statute to a carrier <strong>of</strong><br />
HIV who intended to have sexual intercourse with others without advising them <strong>of</strong> his HIV<br />
status because the law “was passed to deal with conduct, not health conditions.” 190 Despite the<br />
clear danger presented by the person’s sexual contact with others, in the absence <strong>of</strong> his HIV<br />
status, the person’s conduct itself would not support a commitment. 191<br />
By comparison, an exhibitionist’s habitual conduct <strong>of</strong> exposing himself to others may<br />
present the required misconduct depending upon the course it has followed. The court <strong>of</strong> appeals<br />
affirmed the commitment <strong>of</strong> an exhibitionist where his behavior had escalated to include direct<br />
185 Id. at 189.<br />
186 Id. at 190 (emphasis added).<br />
187 Id.<br />
188 In re Scott, No. A05-1356, 2005 WL 3470521 (Minn. Ct. App. Dec. 20, 2005) (unpublished).<br />
189 Id. at *3.<br />
190 In re Stilinovich, 479 N.W.2d 731, 736 (Minn. Ct. App. 1992) (emphasis in original) (court<br />
held problem should be addressed under Health Threat Procedures Act).<br />
191 Id.<br />
27
confrontations with victims <strong>and</strong> minor contact with his latest victim. 192 The court reasoned that<br />
the trial court was not required to delay commitment until someone else was actually harmed<br />
because the danger <strong>of</strong> the person’s conduct had already become evident. 193 By contrast, the<br />
court <strong>of</strong> appeals refused to apply the statute to “a nonviolent exhibitionist” where the person<br />
“had never made any overt acts towards his victims to show an intent <strong>of</strong> physical harm. The<br />
possibility <strong>of</strong> escalation was wholly speculative.” 194<br />
The court <strong>of</strong> appeals has held that severe window peeping behavior constituted sexual<br />
misconduct for the purposes <strong>of</strong> the SPP law. The respondent peeped on the same woman over<br />
300 times, typically masturbating to ejaculation while peeping or shortly afterward. The woman<br />
felt like a prisoner in her home, fearing the respondent would come into her home <strong>and</strong> rape her<br />
or her child. 195<br />
The court <strong>of</strong> appeals has held that a person’s four attempted kidnappings, three at knife<br />
point, constituted a habitual course <strong>of</strong> misconduct in sexual matters, even though the respondent<br />
had not sexually assaulted any <strong>of</strong> his victims, where the kidnappings were motivated by the<br />
respondent’s sexual impulses. 196<br />
c. Violence; likely harm greater than normal? Robb <strong>and</strong> Preston.<br />
Since Rickmyer, the court <strong>of</strong> appeals has struggled with the issue <strong>of</strong> whether the proposed<br />
patient’s conduct must have been “violent” <strong>and</strong> how serious the likely physical or mental harm<br />
must be in order to support commitment. The proposed patients have pointed to use <strong>of</strong> the words<br />
“violent” <strong>and</strong> “violence” at various points in the Blodgett <strong>and</strong> Rickmyer opinions. In 2001, the<br />
court <strong>of</strong> appeals issued two directly contradictory published opinions addressing these issues.<br />
In In re Robb, the court <strong>of</strong> appeals addressed the violence issue directly <strong>and</strong> held:<br />
Under Blodgett <strong>and</strong> Rickmyer, behavior that makes a person “dangerous to other<br />
persons” as required by the sexual-psychopathic-personality statute is limited to<br />
violent sexual assaults that create a substantial likelihood <strong>of</strong> serious physical or<br />
mental harm being inflicted on the victims. 197<br />
192<br />
In re Clements, 440 N.W.2d 133, 134 (Minn. Ct. App. 1989) (two examiners testified that he<br />
had not harmed any <strong>of</strong> the victims <strong>and</strong> presented only speculative possibility <strong>of</strong> dangerousness;<br />
third examiner found danger real in light <strong>of</strong> escalation in exhibitionist behavior).<br />
193<br />
Id. at 136.<br />
194<br />
In re Rodriguez, 506 N.W.2d 660, 663 (Minn. Ct. App. 1993) (“While appellant’s behavior is<br />
undoubtedly serious <strong>and</strong> disturbing to his victims, he did not have physical contact with them,<br />
molest, rape, or otherwise sexually assault them <strong>and</strong> ordinary criminal sanctions should suffice.”)<br />
195<br />
In re Mely, No. A09-2110, 2010 WL 1658591, at *1-3 (Minn. Ct. App. Apr. 27, 2010)<br />
(unpublished).<br />
196<br />
In re Guetter, No. A09-1358, 2010 WL 10425, at *1-3 (Minn. Ct. App. Jan. 5, 2010)<br />
(unpublished).<br />
197<br />
In re Robb, 622 N.W.2d 564, 571 (Minn. Ct. App. 2001).<br />
28
But the court added: “However, a wide range <strong>of</strong> conduct can be described as violent sexual<br />
assaults.” 198 The court’s discussion does not explain what wide range <strong>of</strong> conduct might be<br />
covered by the phrase “violent sexual assaults,” <strong>and</strong> the court’s decision overturning Robb’s<br />
commitment under the SPP statute does not appear to turn on the requirement <strong>of</strong> violence.<br />
Rather, the court looked to the facts <strong>and</strong> holdings <strong>of</strong> Blodgett <strong>and</strong> Rickmyer in an attempt<br />
to determine when the expected harm from a sex <strong>of</strong>fense would constitute “serious physical or<br />
mental harm.” The court announced an apparent st<strong>and</strong>ard for this determination, saying “serious<br />
mental harm must mean greater mental harm than would be expected in a sexual assault.” 199<br />
Then, applying this st<strong>and</strong>ard to the facts <strong>of</strong> Rickmyer <strong>and</strong> Blodgett, the court said that “there is no<br />
indication that [the harm that would result from Rickmyer’s acts] was greater than the harm that<br />
could be expected to be caused by any sexual assault,” 200 but that “[t]he physical <strong>and</strong> mental<br />
harm likely to be caused by Blodgett’s behavior was greater than the physical <strong>and</strong> mental harm<br />
likely to be caused by other sexual assaults that involve some force.” 201<br />
The court then concluded that Robb’s acts did not meet this st<strong>and</strong>ard. While Robb’s first<br />
two series <strong>of</strong> sexual assaults had primarily involved touching adolescent boys over their clothing,<br />
he had performed oral sex on <strong>and</strong> masturbated an adolescent boy in a sex <strong>of</strong>fender treatment<br />
program, <strong>and</strong> his last series <strong>of</strong> <strong>of</strong>fenses involved performing oral sex <strong>and</strong> mutual masturbation on<br />
three boys, ages 12-14, on numerous occasions. Robb’s earlier touching <strong>of</strong>fenses had occurred<br />
while he acted as a music teacher, <strong>and</strong> his last <strong>of</strong>fenses involved a classic pedophilic grooming<br />
pattern—employing snacks, drugs, video games <strong>and</strong> pornographic videos as enticements. He<br />
physically restrained one victim while performing oral sex on him <strong>and</strong> he <strong>of</strong>ten persisted even<br />
after the boys told him to stop. 202 The appellate court reversed Robb’s SPP commitment,<br />
holding that the “mental harm [that would result from his acts] was not greater than the mental<br />
harm likely to be caused by a sexual assault.” 203<br />
Both Robb <strong>and</strong> the county sought state supreme court review on the harmfulness issue.<br />
(Robb sought such review because the appellate court upheld his SDP commitment.) However,<br />
the supreme court denied review.<br />
Shortly after the supreme court denied review in Robb, the court <strong>of</strong> appeals issued a<br />
decision affirming the SPP (<strong>and</strong> SDP) commitment in In re Preston. 204 In addition to various<br />
acts <strong>of</strong> fondling, Preston’s sexual abuse <strong>of</strong> young girls (as young as age four) had included<br />
performing oral sex on several <strong>of</strong> them <strong>and</strong> digitally penetrating the vagina <strong>of</strong> one girl. He used<br />
physical restraint on his child victims. Similar to Robb, Preston argued that his actions were not<br />
violent, nor sufficiently harmful under the Rickmyer st<strong>and</strong>ard.<br />
198 Id. at 569.<br />
199 Id. at 571.<br />
200 Id.<br />
201 Id. at 572.<br />
202 Id. at 567.<br />
203 Id. at 573.<br />
204 In re Preston, 629 N.W.2d 104 (Minn. Ct. App. 2001).<br />
29
The appellate court rejected Preston’s arguments, concluding that the “collateral physical<br />
force” he used with his victims constituted violence. 205 The court expressly disagreed with<br />
Robb’s holding that “limited restraint <strong>of</strong> a victim that does not cause physical injury itself is not<br />
the kind <strong>of</strong> violence contemplated by the sexual-psychopathic-personality statute.” 206 The court<br />
said:<br />
Preston only engaged in the amount <strong>of</strong> force necessary to accomplish his will on<br />
very young victims, but this amount <strong>of</strong> force was violence nonetheless. It would<br />
be absurd to hold that because less force was needed to subdue an extremely<br />
young victim, the assault was non-violent. 207<br />
The court then added:<br />
Furthermore, even if Preston had not used force, the character <strong>and</strong> nature<br />
<strong>of</strong> his sexual acts alone were sufficient for indeterminate commitment. This is not<br />
a situation where Preston engaged in “touchings <strong>and</strong> spankings;” the sexual acts<br />
themselves were extremely violent. 208<br />
Thus, the court in Preston held that the mere act <strong>of</strong> sexual assault, at least that involving oral<br />
sexual contact or penetration with children, constitutes sexual violence. And the court<br />
specifically noted that the Rickmyer st<strong>and</strong>ard does not require a likelihood <strong>of</strong> physical harm, but<br />
that a likelihood <strong>of</strong> mental harm is sufficient. 209<br />
Moreover, the court in Preston expressly disagreed with Robb’s holding that greaterthan-normal<br />
harmfulness is required:<br />
The supreme court has not suggested that the question is whether the violence was<br />
greater than that involved in “other sexual assaults that involve some physical<br />
force,” see Robb, 622 N.W.2d at 572 (comparing the degree <strong>of</strong> violence involved<br />
to “other sexual assaults”), but whether it was violent to the point <strong>of</strong> creating “a<br />
substantial likelihood <strong>of</strong> serious physical or mental harm.” Rickmyer, 519<br />
N.W.2d at 190. 210<br />
Thus, the court held that the st<strong>and</strong>ard for violence is the Rickmyer st<strong>and</strong>ard—whether the<br />
conduct creates a substantial likelihood <strong>of</strong> serious physical or emotional harm.<br />
The court then upheld Preston’s commitment, saying:<br />
205 Id. at 113.<br />
206 Id.<br />
207 Id.<br />
208 Id.<br />
209 Id. at 112 n.4.<br />
210 Id. at 113.<br />
30
Preston’s behavior involved impermissible sexual contact (including oral sexual<br />
contact <strong>and</strong> vaginal penetration) with victims as young as four years old, <strong>and</strong> he<br />
victimized many <strong>of</strong> the children repeatedly. The court received expert testimony<br />
that the character <strong>of</strong> Preston’s acts was such that psychological harm would be a<br />
likely consequence for his victims. There can be no question that this pattern <strong>of</strong><br />
behavior is so egregious so as to create the “substantial likelihood <strong>of</strong> physical or<br />
mental harm.” 211<br />
d. What does “violence” mean, <strong>and</strong> how much harmfulness is<br />
necessary, post-Robb <strong>and</strong> Preston?<br />
Following the Robb <strong>and</strong> Preston decisions, the appellate court in In re Kindschy 212 again<br />
considered an argument that the patient’s acts were not sufficiently violent to qualify for<br />
commitment. Despite the express contradiction <strong>of</strong> Robb by Preston, the court <strong>of</strong> appeals in<br />
Kindschy appeared to reconcile the two decisions, applying both <strong>of</strong> them in upholding<br />
Kindschy’s SPP commitment. The court said:<br />
Unlike the assaults in Rickmyer <strong>and</strong> Robb, Kindschy’s sexual assaults involved<br />
much more than spanking, fondling, masturbation, <strong>and</strong> indecent exposure. They<br />
involved repeated oral <strong>and</strong> anal sex with children as young as five years old <strong>and</strong><br />
were accompanied by threats <strong>of</strong> violence. As in Preston, the character <strong>and</strong> nature<br />
<strong>of</strong> Kindschy’s assaults alone justify a finding that Kindschy is substantially likely<br />
to cause serious physical <strong>and</strong> emotional harm <strong>and</strong> is, therefore, dangerous to<br />
others within the meaning <strong>of</strong> Minn. Stat. § 253B.02, subd. 18b. 213<br />
But the Kindschy court’s characterization <strong>of</strong> Robb’s behavior as involving only “spanking,<br />
fondling, masturbation, <strong>and</strong> indecent exposure” was incorrect. Robb performed oral sex on at<br />
least four adolescent or pre-teen boys numerous times. 214<br />
The following year, in In re Rubin, 215 the appellate court again attempted to find<br />
simultaneous life in Robb <strong>and</strong> Preston. The court cited Preston for the proposition that “serious<br />
psychological harm [is] sufficient to meet [the] violence requirement,” <strong>and</strong> Robb for the<br />
proposition that “[a]n assault is considered violent when the ‘physical <strong>and</strong> mental harm likely to<br />
be caused by [the defendant’s behavior] was greater than the physical <strong>and</strong> mental harm likely to<br />
be caused by sexual assaults that involve some physical force.’” 216 Citing Robb, the court said,<br />
“Serious harm results from acts that are ‘highly likely to have a serious, lasting effect on the<br />
victim’s sense <strong>of</strong> security <strong>and</strong> to cause a continuing sense <strong>of</strong> fear.” 217 The court found Rubin’s<br />
211 Id.<br />
212 In re Kindschy, 634 N.W.2d 723, 732 (Minn. Ct. App. 2001).<br />
213 Id.<br />
214 Robb, 622 N.W.2d at 566-67.<br />
215 In re Rubin, No. C5-02-570, 2002 WL 31111248, at *5 (Minn. Ct. App. Sept. 24, 2002)<br />
(unpublished).<br />
216 Id. (citing Preston, 629 N.W.2d at 112, <strong>and</strong> Robb, 622 N.W.2d at 572).<br />
217 Id. (citing Robb, 622 N.W.2d at 572).<br />
31
molestation <strong>of</strong> children sufficiently harmful where several <strong>of</strong> the assaults involved some form <strong>of</strong><br />
penetration <strong>and</strong> were accompanied by both violent <strong>and</strong> non-violent threats. The court also noted,<br />
“It is not uncommon to have the effects or harm emerge long after the actual assault.” 218<br />
In 2004, in In re McMoore, 219 the appellate court considered whether the appellant’s<br />
conduct was sufficiently harmful under Rickmyer, without any reference to the Robb decision.<br />
McMoore argued that his conduct in molesting three children was no more serious than that<br />
involved in Rickmyer. Rejecting that argument, the appellate court emphasized that McMoore<br />
had engaged in digital anal penetration, reciprocal oral sex, attempted vaginal intercourse <strong>and</strong><br />
actual genital fondling with the victims, rather than merely the exposing, touching <strong>and</strong> spankings<br />
at issue in Rickmyer. 220 The court also emphasized the young age <strong>of</strong> the victims (three through<br />
six years old) <strong>and</strong> the large number <strong>of</strong> incidents over several years. 221 The court compared<br />
McMoore’s conduct to the conduct involved in Preston, but did not mention Robb. 222<br />
In 2005, in In re White, 223 the court <strong>of</strong> appeals reversed an SPP commitment based on<br />
lack <strong>of</strong> violence. The court said that the district court found that the appellant’s conduct was<br />
“harmful,” but made no finding that it was “violent.” 224 The court said that “the forceful conduct<br />
in [Preston] went far beyond that acknowledged by [White].” 225 The White decision does not<br />
describe the conduct involved in that case.<br />
In two 2006 cases, the appellate court again upheld SPP commitments, rejecting<br />
arguments that the appellants’ conduct was not “violent.” In In re Kirck<strong>of</strong>, 226 the appellant cited<br />
Robb in support <strong>of</strong> his argument. But the appellate court held Kirck<strong>of</strong>’s acts to be violent under<br />
Preston, noting that Kirck<strong>of</strong>’s acts involved penetration <strong>and</strong> that he held one victim down during<br />
the assault. The court noted the lasting emotional harm to one <strong>of</strong> the victims. 227 In In re<br />
Urbanek, the appellate court held that “[c]aselaw does not support appellant’s argument” that his<br />
acts were not violent as required by the SPP law, citing Rickmyer <strong>and</strong> Preston. 228 Urbanek had<br />
engaged in oral sex with several young children, although the opinion does not mention any use<br />
218 Id.<br />
219 In re McMoore, No. A04-1008, 2004 WL 2340231 (Oct. 19, 2004).<br />
220 Id. at *1.<br />
221 Id.<br />
222 Id.<br />
223 In re White, No. A05-1474, 2005 WL 3112024 (Minn. Ct. App. Nov. 22, 2005)<br />
(unpublished).<br />
224<br />
Id. at *4.<br />
225<br />
Id.<br />
226<br />
In re Kirck<strong>of</strong>, No. A06-956, 2006 WL 3007995 (Minn. Ct. App. Oct. 24, 2006)<br />
(unpublished).<br />
227<br />
Id. at *7<br />
228<br />
In re Urbanek, No. A05-1633, 2006 WL 44358, at *3 (Minn. Ct. App. Jan. 10, 2006)<br />
(unpublished).<br />
32
<strong>of</strong> force. 229 The court said, “Appellant’s arguments overlook the evidence <strong>of</strong> prolonged suffering<br />
experienced by children who were victims <strong>of</strong> sexual <strong>of</strong>fenses like his.” 230<br />
In 2007, in In re Peria, the appellate court concluded that the appellant’s threats to kill<br />
one victim <strong>and</strong> the victim’s parents, the multiple <strong>of</strong>fenses <strong>and</strong> the digital penetration “enhance<br />
the victims’ harm beyond that expected from a sexual assault.” 231 In another 2007 case, In re<br />
Lund, the court found sufficient violence due to the appellant’s grooming, coercion <strong>and</strong> physical<br />
force used to accomplish the sexual misconduct, coupled with his place <strong>of</strong> authority as babysitter<br />
<strong>and</strong> trusted friend. 232<br />
In a third 2007 case, In re Christiansen, the court <strong>of</strong> appeals held that “appellant’s<br />
reliance on Robb for the proposition that the sexual <strong>of</strong>fenses must be violent in nature is<br />
misplaced.” 233 The court held that facts that meet the Rickmyer st<strong>and</strong>ard—“sexual misconduct<br />
. . . <strong>of</strong> such an egregious nature that there is a substantial likelihood <strong>of</strong> serious physical or mental<br />
harm being inflicted on the victims”—are violent enough to qualify for commitment. Citing<br />
Preston, the court said, “[E]gregious sexual misconduct, by the nature <strong>of</strong> the sexual acts<br />
themselves, can be considered violent.” 234 The court concluded: “Thus, the nature <strong>of</strong> appellant's<br />
sexual <strong>of</strong>fenses was such that they likely caused substantial mental harm to his victims, <strong>and</strong> as a<br />
result, they were sufficiently egregious <strong>and</strong> violent in their nature to meet the dangerous-toothers<br />
requirement <strong>of</strong> the SPP definition.” 235<br />
In a 2008 case, In re Schultz, the court <strong>of</strong> appeals followed Preston in concluding that<br />
“sexual activities with very young children” are “inherently violent.” 236 Shultz’s youngest<br />
victim was five years old. In another 2008 case, In re Benson, the appellate court followed<br />
Preston, saying, “The majority <strong>of</strong> appellant’s assaults were violent because he used whatever<br />
force was necessary to perpetrate his assaults.” 237 And, in a third 2008 decision, In re<br />
Goldhammer, the court said rejected the appellant’s reliance on Robb, observing that Preston had<br />
qualified Robb’s holding. 238<br />
229<br />
Id. at *1.<br />
230<br />
Id. at *3.<br />
231<br />
In re Peria, No. A06-1452, 2007 WL 235632, at *6 (Minn. Ct. App. Jan. 30, 2007)<br />
(unpublished).<br />
232<br />
In re Lund, No. A06-1657, 2007 WL 584175, at *3 (Minn. Ct. App. Feb. 27, 2007)<br />
(unpublished).<br />
233<br />
In re Christiansen, No. A07-1290, 2007 WL 4305465, at *8 (Minn. Ct. App. Dec. 11, 2007)<br />
(unpublished).<br />
234<br />
Id.<br />
235<br />
Id. at *9.<br />
236<br />
In re Schulz, No. A07-1368, 2007 WL 4634071, at *5 (Minn. Ct. App. Jan. 8, 2008)<br />
(unpublished).<br />
237<br />
In re Benson, No. A08-0793, 2008 WL 4850153, at *5 (Minn. Ct. App. Nov. 3, 2008)<br />
(unpublished).<br />
238<br />
In re Goldhammer, No. A08-0251, 2008 WL 2967076, at 6-7 (Minn. Ct. App. Aug. 5, 2008)<br />
(unpublished).<br />
33
In 2009, in In re Rask, the court <strong>of</strong> appeals said: “[A]ppellate decisions since Robb have<br />
retreated from Robb’s interpretation <strong>of</strong> the harmfulness st<strong>and</strong>ard [<strong>of</strong> the SPP law], which<br />
required that ‘serious mental harm must mean greater mental harm than would be expected in a<br />
sexual assault.” 239 The court cited Preston <strong>and</strong> Kindschy for this proposition. 240<br />
e. Discussion <strong>of</strong> violence <strong>and</strong> harmfulness in cases preceding<br />
Robb <strong>and</strong> Preston.<br />
Given the disagreement between the Robb <strong>and</strong> Preston decisions <strong>and</strong> the inconsistent<br />
case law following those decisions, litigants <strong>and</strong> the courts may also look to earlier decisions to<br />
ascertain the meaning <strong>of</strong> “violence” <strong>and</strong> attempt to determine the st<strong>and</strong>ard for harmfulness <strong>of</strong><br />
conduct under the two laws.<br />
Shortly after Rickmyer, the court <strong>of</strong> appeals in In re Schweninger (Schweninger I) 241<br />
overturned the commitment <strong>of</strong> a pedophile who had molested at least 17 children by engaging in<br />
“bribing” <strong>and</strong> “mutual fondling, exposure <strong>and</strong> oral sex,” holding that the conduct was not<br />
sufficiently harmful to warrant commitment. As it later held in Robb, the Schweninger I court<br />
held that Blodgett <strong>and</strong> Rickmyer “preclude[] the commitment <strong>of</strong> appellant as a non-violent<br />
pedophile under the psychopathic personality statute,” 242 <strong>and</strong> that a pedophile could not be<br />
committed “absent a showing <strong>of</strong> violence.” 243 The court <strong>of</strong> appeals incorrectly characterized<br />
Rickmyer as requiring “a substantial likelihood <strong>of</strong> serious physical harm such as to meet the<br />
requirements for commitment.” 244 (As noted above, Rickmyer authorized commitment based<br />
upon a showing <strong>of</strong> a substantial likelihood <strong>of</strong> serious physical or mental harm. 245 ) One judge,<br />
dissenting in Schweninger I, said: “[W]e depart from precedent by suggesting that the<br />
psychopathic personality statute protects only victims <strong>of</strong> raw physical force—not the children<br />
<strong>and</strong> vulnerable adults whose lives are severely <strong>and</strong> permanently marred by sexual behavior like<br />
the acts <strong>of</strong> sexual penetration that are part <strong>of</strong> appellant’s pattern <strong>of</strong> conduct.” 246<br />
A week later, the same panel <strong>of</strong> the court <strong>of</strong> appeals upheld the commitment <strong>of</strong> another<br />
pedophile in In re Bieganowski. 247 Bieganowski had sexually assaulted his teenage sister-in-law<br />
<strong>and</strong> had engaged in multiple acts <strong>of</strong> oral sex <strong>and</strong> at least one instance <strong>of</strong> anal intercourse with<br />
239<br />
In re Rask, No. A08-1312, A08-1551, 2009 WL 511943, at *3 (Minn. Ct. App. Feb. 26, 2009)<br />
(unpublished).<br />
240<br />
Id.<br />
241<br />
In re Schweninger, 520 N.W.2d 446 (Minn. Ct. App. 1994).<br />
242<br />
Id. at 449.<br />
243<br />
Id. at 450; but cf. In re Schweninger (Schweninger II), No. C1-96-362, 1997 WL 613670<br />
(Minn. Ct. App. Oct. 7, 1997) (unpublished) (the court <strong>of</strong> appeals, upholding commitment,<br />
concluded that the SDP statute requires a showing <strong>of</strong> likelihood <strong>of</strong> either serious physical or<br />
emotional harm, but does not require both).<br />
244<br />
Id. (emphasis added).<br />
245<br />
Rickmyer, 519 N.W.2d at 190 (emphasis added).<br />
246<br />
Schweninger I, 520 N.W.2d at 452 (Crippen, dissenting).<br />
247<br />
In re Bieganowski, 520 N.W.2d 525 (Minn. Ct. App. 1994).<br />
34
young children. 248 Although the court did not discuss the degree <strong>of</strong> harm or the level <strong>of</strong> violence<br />
required to support commitment, Bieganowski’s sexual misconduct did not appear to involve<br />
greater violence or force than that used by Schweninger.<br />
Later that same year, in In re Young, the court <strong>of</strong> appeals considered the commitment <strong>of</strong> a<br />
pedophile who had engaged in oral sex <strong>and</strong> vaginal intercourse with a number <strong>of</strong> young girls. 249<br />
Despite this evidence <strong>of</strong> sexual penetration, the court appeared to be searching for evidence <strong>of</strong><br />
actual or threatened physical violence <strong>and</strong> apparently concluded that slamming one child’s<br />
fingers in a car door <strong>and</strong> beating her, <strong>and</strong> threatening to kill one <strong>of</strong> the victims <strong>and</strong> her family,<br />
provided the violence necessary to support the commitment. 250 However, less than a year later,<br />
in In re Mattson, the court <strong>of</strong> appeals found physical violence unnecessary to sustain a<br />
commitment <strong>of</strong> a person who had engaged in forced anal sex, oral sex, <strong>and</strong> digital penetration<br />
with young children. 251 In upholding the commitment, the court stressed expert testimony “that a<br />
physically noninjurious assault on a child nonetheless can be physically or emotionally violent,<br />
<strong>and</strong> can include post-traumatic effects.” 252 A month later, the court <strong>of</strong> appeals in In re<br />
Adolphson 253 came closer to relying on purely mental harm suffered by victims to support a PP<br />
commitment. While the Adolphson court noted that the <strong>of</strong>fender intimidated <strong>and</strong> used “painful<br />
finger pressure to coerce his young victims,” 254 the court explained its decision to uphold the<br />
commitment on the basis that “the trial court found appellant has inflicted serious mental harm<br />
on his victims, which resulted in fear <strong>of</strong> discovery, fear <strong>of</strong> job loss, long-term guilt, sleep<br />
problems <strong>and</strong> nightmares, denial or repression <strong>of</strong> feelings, alcohol problems, <strong>and</strong> depression.” 255<br />
Since Schweninger I, only one appellate SPP (or SDP) decision, In re White, discussed<br />
above, has overturned a commitment because <strong>of</strong> the lack <strong>of</strong> physical violence. 256 On the other<br />
h<strong>and</strong>, there are many examples <strong>of</strong> the courts considering the level <strong>of</strong> harm experienced or likely<br />
to be experienced by the <strong>of</strong>fender’s victims <strong>and</strong> focusing upon their emotional harm. In In re<br />
Hoium, the appellate court found the st<strong>and</strong>ard met where the district court credited testimony that<br />
the appellant’s acts against children, including fondling, fellatio, digital <strong>and</strong> anal penetration,<br />
248 Id. at 526.<br />
249 In re Young, No. C1-94-1779, 1994 WL 654508 (Minn. Ct. App. Nov. 22, 1994)<br />
(unpublished).<br />
250 Id.<br />
251 In re Mattson, No. C5-95-452, 1995 WL 365374 (Minn. Ct. App. June 20, 1995)<br />
(unpublished).<br />
252 Id., see also In re Mathews, No. C6-95-749, 1995 WL 421702 (Minn. Ct. App. July 18, 1995)<br />
(unpublished) (“the fact that Mathews did not beat his victims does not render the acts<br />
nonviolent”).<br />
253 In re Adolphson, No. C5-95-533, 1995 WL 434386 (Minn. Ct. App. July 25, 1995)<br />
(unpublished).<br />
254 Adolphson engaged in touching, grabbing, <strong>and</strong> pinching <strong>of</strong> buttocks or genitals leading to<br />
manual manipulation <strong>and</strong> masturbation, <strong>and</strong> then anal <strong>and</strong> oral sex.<br />
255 Id.<br />
256 In re White, No. A05-1474, 2005 WL 3112024 (Minn. Ct. App. Nov. 22, 2005)<br />
(unpublished).<br />
35
using coercion, force <strong>and</strong> manipulation, “were likely to cause serious emotional harm.” 257 In In<br />
re Hart, the court <strong>of</strong> appeals, noting Hart’s “frequent use <strong>of</strong> physical force <strong>and</strong> coercion to<br />
accomplish his countless sexual assaults against children,” emphasized the emotional results <strong>of</strong><br />
these assaults—“school problems, depression, isolation, confusion, <strong>and</strong> difficulties with trust <strong>and</strong><br />
with sexual relations.” 258 In In re Krueger, after finding that the conduct Krueger “engaged in<br />
was <strong>of</strong> the type to cause serious physical or emotional harm to the victims,” <strong>and</strong> finding serious<br />
physical harm suffered by a six-year-old victim when appellant inserted his finger or penis into<br />
her small vaginal opening, the court cited serious emotional problems such as flashbacks,<br />
nightmares, troubles with relationships with men, thoughts about committing suicide, <strong>and</strong> the<br />
need for counseling. 259 In In re Weiss, the court found sufficient harm where the <strong>of</strong>fender<br />
threatened <strong>and</strong> spanked some <strong>of</strong> the children, held their arms <strong>and</strong> legs down if they resisted, <strong>and</strong><br />
bribed <strong>and</strong> cajoled them by <strong>of</strong>fering gifts <strong>of</strong> c<strong>and</strong>y, ice cream, <strong>and</strong> toys; the court also referenced<br />
testimony about the mental harm suffered by some <strong>of</strong> the victims <strong>and</strong> that the force used inflicted<br />
a great deal <strong>of</strong> pain. 260<br />
Similar to the holding in Preston, a number <strong>of</strong> previous court <strong>of</strong> appeals decisions have<br />
indicated, directly or indirectly, that physical violence is not required. In In re Poole, the<br />
proposed patient asserted that his actions did not qualify for commitment because they were not<br />
violent. 261 Rejecting this argument, the court said: “The relevant question is whether there is a<br />
substantial likelihood <strong>of</strong> serious physical or emotional harm. The [trial] court found that Poole’s<br />
type <strong>of</strong> non-violent abuse is likely to cause in victims a loss <strong>of</strong> trust, insecurity, anxiety,<br />
depression, sleep disorders, <strong>and</strong> problems with parenting.” 262 In In re LeMasters, the court held<br />
that the Appellant’s non-forcible sex acts with numerous children, including fondling <strong>and</strong> oral<br />
sex as well as attempted vaginal penetration, “caused emotional trauma,” <strong>and</strong> was “more serious<br />
than the ‘spanking’ <strong>and</strong> ‘touching’ found insufficient in Rickmyer.” 263 In In re Kubec, the court<br />
<strong>of</strong> appeals upheld the commitment <strong>of</strong> an <strong>of</strong>fender who had engaged in non-violent sexual<br />
behavior as a juvenile with other juveniles <strong>and</strong> with some victims who were significantly<br />
younger. The court observed that, “while Kubec did not use ‘force,’ he nonetheless committed<br />
serious sexual abuse that emotionally scarred his victims.” 264 In In re Meyer, the court <strong>of</strong><br />
appeals, rejecting the appellant’s contention that he was not a violent <strong>of</strong>fender likely to inflict<br />
serious physical harm on his victims, held that fondling; masturbation; digital, vaginal <strong>and</strong> anal<br />
257 In re Hoium, No. C2-98-469, 1998 WL 531814, at *3 (Minn. Ct. App. Aug. 25, 1998)<br />
(unpublished).<br />
258 In re Hart, No. C9-95-2057, 1996 WL 56504 (Minn. Ct. App. Feb. 9, 1996) (unpublished),<br />
summ. aff’d (Minn. Jan. 21. 1997).<br />
259 In re Krueger, No. C3-96-2503, 1997 WL 206802 (Minn. Ct. App. Apr. 29, 1997)<br />
(unpublished).<br />
260<br />
In re Weiss, No. C8-97-1115, 1997 WL 666033 (Minn. Ct. App. Oct. 28, 1997)<br />
(unpublished).<br />
261<br />
In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381 (Minn. Ct. App. June 20, 2000)<br />
(unpublished).<br />
262<br />
Id. at *5.<br />
263<br />
In re LeMasters, No. C6-99-1179, 1999 WL 1256392, at *4 (Minn. Ct. App. Dec. 28, 1999)<br />
(unpublished).<br />
264<br />
In re Kubec, No. C9-97-1673, 1998 WL 27295 (Minn. Ct. App. Jan. 27, 1998) (unpublished).<br />
36
penetration; <strong>and</strong> performing oral sex on young victims, after grooming them, met the st<strong>and</strong>ard<br />
for harmful sexual conduct. 265 In In re Howard, the court concluded that the appellant engaged<br />
in harmful sexual conduct under both the SPP <strong>and</strong> SDP laws, despite his claim that he did not<br />
inflict physical injury on his victims <strong>and</strong> abused only people he knew, where numerous young<br />
girls (aged 7 to 14) testified to long-term emotional harm, where he had fondled <strong>and</strong> penetrated<br />
them with his fingers <strong>and</strong> penis, <strong>and</strong> where he compelled two sisters to witness his sexual<br />
intercourse with their mother for “sex education.” 266 In In re Creighton, the court rejected the<br />
appellant’s contention that, because he did not torture or batter his victims, he was not violent. 267<br />
The court said the relevant question is whether there was a substantial likelihood <strong>of</strong> serious<br />
physical or emotional harm. The court also found significant the “pr<strong>of</strong>ound psychological<br />
devastation” inflicted, the use <strong>of</strong> force, <strong>and</strong> the size differential between Creighton <strong>and</strong> his<br />
victims. In In re J.L.D., the court rejected the appellant’s contention that his conduct was much<br />
less harmful than the history <strong>of</strong> sexual assaults <strong>of</strong> others committed as PPs <strong>and</strong> his claim that he<br />
did not cause the type <strong>of</strong> harm the statute is intended to address. 268 The court found that his<br />
serious repeated sexual assaults against his vulnerable daughters <strong>and</strong> others caused severe<br />
emotional harm. In In re Gleason, the <strong>of</strong>fender raised the same arguments raised by J.L.D. The<br />
court rejected these claims finding that he had engaged in “repeated, forceful, sexual assaults<br />
against his vulnerable, younger sister” which caused her severe emotional trauma. 269 In In re<br />
Hommes, considering the utter-lack-<strong>of</strong>-power-to-control issue, the court <strong>of</strong> appeals observed:<br />
“The digital penetration <strong>of</strong> [the adolescent 10-12-year-old girls’] vaginas was a horrendous<br />
bodily invasion.” 270<br />
In In re Prather, addressing a commitment under the SDP law only, the court cited expert<br />
testimony concerning “the extreme harm that will likely be caused by an adult’s sexual contact<br />
with children, regardless <strong>of</strong> whether it is violent or nonviolent,” <strong>and</strong> held that, “[u]nlike<br />
Rickmyer, in this case there was extensive testimony as to the likelihood <strong>of</strong> emotional harm to<br />
the victims.” 271 Addressing the issue <strong>of</strong> “serious emotional harm” in In re Martinelli, another<br />
SDP commitment case, the court <strong>of</strong> appeals analogized to the “substantial emotional harm”<br />
st<strong>and</strong>ard in the criminal statute relating to malicious punishment <strong>of</strong> a child. 272 The court noted<br />
265 In re Meyer, No. C7-96-981, 1996 WL 537500 (Minn. Ct. App. Sept. 24, 1996)<br />
(unpublished).<br />
266<br />
In re Howard, No. C6-96-1703, 1997 WL 228989 (Minn. Ct. App. May 6, 1997)<br />
(unpublished).<br />
267<br />
In re Creighton, No. C9-97-748, 1997 WL 407802 (Minn. Ct. App. July 22, 1997)<br />
(unpublished).<br />
268<br />
In re J.L.D., No. C7-97-1879, 1998 WL 147859 (Minn. Ct. App. Mar. 31, 1998)<br />
(unpublished).<br />
269<br />
In re Gleason, No. C2-97-2194, 1998 WL 218223 (Minn. Ct. App. May 5, 1998)<br />
(unpublished).<br />
270 In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn. Ct. App. Jan. 9, 2001) (unpublished).<br />
271 In re Prather, No. C8-98-847, 1998 WL 887539 (Minn. Ct. App. Dec. 22, 1998)<br />
(unpublished), rem<strong>and</strong>ed (Minn. Feb. 24, 1999), appeal after rem<strong>and</strong>, No. C0-00-987, 2000 WL<br />
1778321 (Minn. Ct. App. Nov. 21, 2000) (unpublished).<br />
272 In re Martinelli, No. C6-98-569, 1998 WL 613845, at *4 (Minn. Ct. App. Sept. 18, 1998)<br />
(unpublished), rem<strong>and</strong>ed (Minn. Aug. 5, 1999), appeal after rem<strong>and</strong>, No. C4-00-748, 2000 WL<br />
37
that, in such a criminal prosecution, the jury is instructed to use its common sense to determine<br />
whether emotional harm to the child was substantial. 273<br />
One non-SPP/SDP decision may also be relevant to this issue. A year after Rickmyer, the<br />
supreme court considered the case <strong>of</strong> In re Knops, involving an appellant who was alleged to be<br />
mentally ill <strong>and</strong> dangerous. 274 The issue in Knops was whether the appellant’s sexual conduct<br />
with a four-year-old girl constituted “serious physical harm” under the MI&D commitment<br />
statute. 275 Holding that this st<strong>and</strong>ard was met, the supreme court distinguished Knops’ conduct<br />
from Rickmyer’s on the ground that Knops not only touched the girl’s genital area, buttocks, <strong>and</strong><br />
breasts, but also digitally penetrated her vagina. Moreover, the Knops court found that serious<br />
physical harm occurred despite the absence <strong>of</strong> severe pain to the victim, because “the focus in<br />
cases <strong>of</strong> this nature should not be on the severity <strong>of</strong> the pain, but on the seriousness <strong>of</strong> the act <strong>and</strong><br />
whether it did occur.” 276<br />
2. SDP statute—what is “sexual” conduct, st<strong>and</strong>ard for harmfulness,<br />
<strong>and</strong> “rebuttable presumption” <strong>of</strong> harmfulness.<br />
The SDP law requires that the proposed patient has engaged in a course <strong>of</strong> “harmful<br />
sexual conduct,” <strong>and</strong> that he is highly likely to engage in such conduct in the future. As<br />
explained earlier, the term “harmful sexual conduct” used in the SDP definition is defined in the<br />
statute:<br />
Subd. 7a. HARMFUL SEXUAL CONDUCT. (a) “Harmful sexual<br />
conduct” means sexual conduct that creates a substantial likelihood <strong>of</strong> serious<br />
physical or emotional harm to another.<br />
(b) There is a rebuttable presumption that conduct described in the<br />
following provisions creates a substantial likelihood that a victim will suffer<br />
serious physical or emotional harm: [statutory provisions defining criminal sexual<br />
conduct, 1st-4th degrees]. If the conduct was motivated by the person’s sexual<br />
impulses or was part <strong>of</strong> a pattern <strong>of</strong> behavior that had criminal sexual conduct as a<br />
goal, the presumption also applies to [statutory provisions defining Murder;<br />
Manslaughter; Assault, lst-3d degrees; Robbery; Kidnapping; False<br />
Imprisonment; Incest; Witness Tampering; Arson, 1st degree; Burglary, 1st<br />
degree; Terroristic Threats; Harassment <strong>and</strong> Stalking]. 277<br />
1285430 (Minn. Ct. App. Sept. 12, 2000) (unpublished), review denied (Minn. 2000), vacated<br />
<strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 1160, 122 S. Ct. 1171 (2002), aff’d after rem<strong>and</strong>, 649 N.W.2d 886<br />
(Minn. Ct. App. 2002), citing Minn. Stat. § 609.377 (1986).<br />
273 Id., citing State v. Williams, 451 N.W.2d 886, 890-91 (Minn. Ct. App. 1990).<br />
274 In re Knops, 536 N.W.2d 616 (Minn. 1995).<br />
275 Id. at 620 (in MI&D commitments, Minn. Stat. § 253B.02, subd. 17 (1994) required an “overt<br />
act causing or attempting to cause serious physical harm to another”).<br />
276 Id. at 620-21. (finding that “while the penetration [<strong>of</strong> the four year old girl] did not cause<br />
severe pain to K.B., Knop’s use <strong>of</strong> his fingers to penetrate the victim’s vagina which caused the<br />
removal <strong>of</strong> her hymenal tissue constitutes a serious physical injury.”<br />
277 Minn. Stat. § 253B.02, subd. 7a(a) (2009).<br />
38
The definition <strong>of</strong> harmful sexual conduct in the SDP law was taken directly from Rickmyer. The<br />
only difference in the wording <strong>of</strong> the two st<strong>and</strong>ards is the substitution <strong>of</strong> the word “emotional” in<br />
the SDP st<strong>and</strong>ard for “mental” in the Rickmyer st<strong>and</strong>ard.<br />
As noted above, the SDP law also contains a “rebuttable presumption that conduct<br />
described in [certain criminal] provisions creates a substantial likelihood that a victim will suffer<br />
serious physical or emotional harm.” 278 In one unreported decision, the court <strong>of</strong> appeals noted<br />
that the proposed patient, who had been charged with conduct described in the statutory<br />
provisions for second- <strong>and</strong> fourth-degree criminal sexual conduct, had pled guilty only to fifthdegree<br />
criminal sexual conduct, which is not included in the list <strong>of</strong> crimes to which the<br />
presumption applies. Because he was not convicted <strong>of</strong> a crime on the statutory presumption list,<br />
the court held that the presumption <strong>of</strong> harmfulness did not apply to his acts. 279 However, in<br />
another unreported case decided the same day, as well as an earlier case, the appellate court<br />
reached the opposite conclusion, saying: “But appellant’s argument fails to recognize that the<br />
statutory presumption applies if a person commits conduct that is described in the criminal<br />
statutes; it does not matter if the person is actually convicted <strong>of</strong> such conduct.” 280<br />
The court <strong>of</strong> appeals has held that the rebuttable presumption does not unconstitutionally<br />
shift the burden <strong>of</strong> pro<strong>of</strong> to the respondent. 281<br />
In 1996, in Linehan III, 282 the Minnesota Supreme Court apparently put to rest any<br />
question <strong>of</strong> the need to show violence in order to demonstrate the requisite degree <strong>of</strong> harm under<br />
the SDP law. The supreme court addressed Linehan’s argument that the trial court had not<br />
specifically found that he was likely to engage in seriously harmful conduct:<br />
Linehan seems to argue that the risk <strong>of</strong> “low-level, non-violent” acts should not be<br />
included in light <strong>of</strong> the supposed purpose <strong>of</strong> the SDP Act to commit only the most<br />
dangerous sexual predators. But whatever the purposes <strong>of</strong> the Act, the scope <strong>of</strong><br />
the statute is clear. Nonviolent but sexually harmful acts are included in its reach.<br />
The Act calls for a general determination that seriously harmful sexual conduct is<br />
highly likely to occur. 283<br />
278 Id. at (b).<br />
279 In re Lentz, No. A07-670, 2007 WL 2770417, at *4 (Minn. Ct. App. Sept. 25, 2007)<br />
(unpublished). (Nonetheless, the court in Lentz upheld the lower court’s finding that, regardless<br />
<strong>of</strong> the presumption, Lentz’s conduct met the harmfulness st<strong>and</strong>ard <strong>of</strong> the SDP law).<br />
280 In re Swedeen, No. A07-805, 2007 WL 2770440, at *8 (Minn. Ct. App. Sept. 25, 2007)<br />
(unpublished); see also In re Hilton, No. A06-2261, 2007 WL 1532151, at *7 (Minn. Ct. App.<br />
May 29, 2007) (unpublished).<br />
281 In re Kindschy, 634 N.W.2d 723, 729-31 (Minn. Ct. App. 2001), review denied (Minn. 2001).<br />
282 In re Linehan (Linehan III), 557 N.W.2d 171, 190 (Minn. 1996), vacated <strong>and</strong> rem<strong>and</strong>ed, 522<br />
U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).<br />
283 Id. (citation omitted, emphasis added).<br />
39
In re Robb, discussed above under the SPP statute, also addressed the harmfulness <strong>of</strong><br />
conduct necessary under the SDP law. The court <strong>of</strong> appeals held that, unlike the SPP law, the<br />
SDP law does not require a showing <strong>of</strong> violence. 284<br />
The appellate court in Robb also addressed whether the SDP law requires that the harm to<br />
be expected from the proposed patient’s conduct be greater than the harm expected from a<br />
typical sexual assault. Because <strong>of</strong> the presumption that conduct that would violate certain<br />
criminal statutes is harmful enough to support commitment, the court <strong>of</strong> appeals said that the<br />
st<strong>and</strong>ard is reversed from that applicable to the SPP law. Under the SDP law, the court said,<br />
conduct described in the specified statutes is sufficiently harmful to support commitment unless<br />
it is “less serious than the conduct that typically occurs in the commission <strong>of</strong> the <strong>of</strong>fenses”<br />
specified in the statute. 285 In In re Brinkman, the court <strong>of</strong> appeals held that that, given the<br />
victim’s age <strong>of</strong> 14, the fact that she consensually engaged in the sexual conduct did not rebut the<br />
statutory presumption <strong>of</strong> harm. 286 In In re Allen, the court <strong>of</strong> appeals held that incest also falls<br />
within the statutory presumption. 287 In In re Ellringer, the appellate court affirmed the trial<br />
court’s decision that the person’s apparently sexually motivated burglaries did not fall within the<br />
<strong>of</strong>fenses covered by the statutory presumption. 288 The decision does not explain why the<br />
sexually motivated burglary behavior would not fall within the statutory list <strong>of</strong> presumption<br />
<strong>of</strong>fenses, but said the trial court also found that the behavior, stealing women’s underwear, was<br />
not likely to result in serious emotional harm, thus rebutting the presumption. The appellate<br />
court said, “Although there is evidence in the record that would support an opposite conclusion<br />
on the harmfulness issue, we defer to the district court's ability to judge the credibility <strong>of</strong><br />
competing experts.” 289<br />
In In re Martin, the court <strong>of</strong> appeals held that conduct meeting the SDP commitment<br />
st<strong>and</strong>ard need not involve a likelihood <strong>of</strong> physical harm, but that likely emotional harm is<br />
sufficient. 290<br />
In considering harmfulness <strong>of</strong> the proposed patient’s sexual conduct, the court <strong>of</strong> appeals<br />
in In re Stone considered the examiners’ opinions regarding (1) characteristics <strong>of</strong> the victim <strong>and</strong><br />
Stone’s acts that were likely to be particularly harmful to victims, (2) harm that was likely to<br />
284 In re Robb, 622 N.W.2d 571, 573 (Minn. Ct. App. 2001).<br />
285 Id.<br />
286 In re Brinkman, No. A08-1077, 2008 WL 5058637, at *8 (Minn. Ct. App. Dec. 2, 2008)<br />
(unpublished).<br />
287<br />
In re Allan, No. A09-1607, 2010 WL 608028, at *2-3 (Minn. Ct. App. Feb. 23, 2010)<br />
(unpublished).<br />
288<br />
In re Ellringer, No. A08-0346, 2008 WL 2889731, at *2 (Minn. Ct. App. July 29, 2008)<br />
(unpublished).<br />
289 Id. at 3.<br />
290 In re Martin, 661 N.W.2d 632, 639 (Minn. Ct. App. 2003); see also In re Krych,<br />
No. A07-2069, 2008 WL 1800140, at *2 (Minn. Ct. App. Apr. 22, 2008) (unpublished); In re<br />
Schweninger, No. C1-96-362, 1997 WL 613670 (Minn. Ct. App. Dec. 15, 1997) (unpublished),<br />
review denied (Minn. 1997), vacated <strong>and</strong> rem<strong>and</strong>ed, 525 U.S. 802 (1998).<br />
40
follow from acts like Stone’s <strong>and</strong> (3) harm that had been suffered by the victims. 291 Concerning<br />
aspects <strong>of</strong> the victim’s circumstances <strong>and</strong> Stone’s acts, the court emphasized the victim’s young<br />
age, the repeated incidents <strong>of</strong> abuse, the escalating <strong>and</strong> different types <strong>of</strong> abuse, <strong>and</strong> the victim’s<br />
close relationship with Stone. The experts said acts like Stones were likely to lead to posttraumatic<br />
stress disorder <strong>and</strong> depression <strong>and</strong> increased likelihood <strong>of</strong> suicide <strong>and</strong> chemical<br />
dependency. The court noted that one victim was already suffering from PTSD <strong>and</strong> another was<br />
experiencing nightmares <strong>and</strong> fears <strong>of</strong> separation from her parents. 292 Likewise, many other<br />
appellate decisions have discussed the particular evidence showing the harmfulness <strong>of</strong> a<br />
proposed patient’s conduct. 293<br />
In In re Washington, the appellate court held that the district court erred in finding that<br />
an act “created a substantial likelihood <strong>of</strong> serious physical or emotional harm” where the<br />
description <strong>of</strong> the <strong>of</strong>fense was vague but involved the respondent, then a juvenile, reaching up a<br />
girl’s blouse on a school bus without her consent, the examiner testified only that the act “could<br />
cause” <strong>and</strong> “creates the possibility” <strong>of</strong> serious emotional harm, <strong>and</strong> the court found that the<br />
respondent’s act “tends to create” a substantial likelihood <strong>of</strong> serious emotional harm. The<br />
appellate court held that such evidence <strong>and</strong> findings did not meet the clear-<strong>and</strong>-convincing<br />
st<strong>and</strong>ard. 294<br />
In In re Norton, 295 the court <strong>of</strong> appeals affirmed the SDP commitment <strong>of</strong> a person who<br />
might be termed a very intrusive exposer <strong>and</strong> window peeper. Norton had exposed himself to<br />
girls <strong>and</strong> women many times in many different settings. On one occasion, he entered a woman’s<br />
home at night, reached under the blankets as she was sleeping <strong>and</strong> rubbed her leg, then<br />
masturbated in her face. He entered the home <strong>of</strong> another sleeping woman, got in bed with her<br />
naked <strong>and</strong> lay against her back with an erection. He had entered the home <strong>of</strong> another woman to<br />
expose himself, <strong>and</strong> engaged in similar acts in a different woman’s garage <strong>and</strong> on the porch <strong>of</strong><br />
still another woman. He used a ladder to peep in the second floor window <strong>of</strong> a house occupied<br />
by several women. 296 The court held Norton’s conduct sufficiently harmful under the SDP law,<br />
noting the examiners’ testimony that his “highly intrusive acts” were likely to lead to “significant<br />
psychological trauma” <strong>and</strong> to damage the victims’ sense <strong>of</strong> security on a long-term basis. 297<br />
291<br />
In re Stone, 711 N.W.2d 831, 838-39 (Minn. Ct. App. 2006).<br />
292<br />
Id. at 838.<br />
293<br />
In re Conner, No. A06-1134, 2006 WL 3593342, at *4-5 (Minn. Ct. App. Dec. 12, 2006)<br />
(unpublished); In re Eckman, No. A06-787 2006 WL 2807205, at *4 (Minn. Ct. App. Oct. 3,<br />
2006) (unpublished); In re Braaten, No. A06-659, 2006 WL 2474274, at *5 (Minn. Ct. App.<br />
Aug. 29, 2006) (unpublished); In re Gorden, No. A06-43, 2006 WL 1806464, at *4 (Minn. Ct.<br />
App. July 3, 2006) (unpublished); In re Hill, No. A05-2438, 2006 WL 1390587, at *4 (Minn. Ct.<br />
App. May 23, 2006) (unpublished); In re Knutson, No. A05-1204, 2005 WL 3159930, at *3<br />
(Minn. Ct. App. Nov. 29, 2005) (unpublished); In re White, No. A05-231, 2005 WL 1804919, at<br />
*2 (Minn. Ct. App. Aug. 2, 2005) (unpublished).<br />
294<br />
In re Washington, No. A08-2216, 2009 WL 1375954, at *1-2 (Minn. Ct. App. May 19, 2009)<br />
(unpublished).<br />
295<br />
In re Norton, No. A05-946, 2005 WL 2979631 (Minn. Ct. App. Nov. 8, 2005) (unpublished).<br />
296 Id. at 1-2.<br />
297 Id. at 3-4.<br />
41
In In re Mely, the court <strong>of</strong> appeals held that the respondent’s severe window peeping<br />
constituted harmful sexual conduct for the purposes <strong>of</strong> the both the SPP <strong>and</strong> SDP laws. The<br />
respondent peeped on the same woman over 300 times, typically masturbating to ejaculation<br />
while peeping or shortly afterward. The woman felt like a prisoner in her home, fearing the<br />
respondent would come into her home <strong>and</strong> rape her or her child. 298<br />
In another unreported decision, In re Lentz, the court <strong>of</strong> appeals upheld the district court’s<br />
decision that three “interference with privacy” convictions, i.e., sexually motivated window<br />
peeping, qualified as harmful sexual conduct. 299 The court distinguished the decision in In re<br />
Rodriguez, 506 N.W.2d 660 (Minn. Ct. App. 1993), which overturned the SPP commitment <strong>of</strong> a<br />
“nonviolent exhibitionist,” noting that, unlike SDP commitments, the SPP law requires a finding<br />
<strong>of</strong> “violent” conduct.” 300<br />
In In re Krych, the court <strong>of</strong> appeals held that a 28-year-old man engaged in harmful<br />
sexual conduct against a 15-year-old girl where he “persistently asked her to have sex with him,<br />
accosted her on a weekly basis, <strong>and</strong> touched her breasts <strong>and</strong> buttocks without consent.” 301 In In<br />
re Christenson, the appellate court upheld a district court’s determination <strong>of</strong> harmful sexual<br />
conduct where a man in his 60’s touched the breasts <strong>of</strong> two developmentally disabled adult<br />
women as well as a 13-year-old <strong>and</strong> a 10-year-old girl. 302 The court emphasized expert<br />
testimony that Christenson chose children <strong>and</strong> vulnerable adults, that the abuse occurred<br />
repetitively over an extended period, <strong>and</strong> that he had developed a relationship <strong>of</strong> trust with the<br />
victims, resulting in a likelihood <strong>of</strong> increased harm. 303<br />
There is also the question <strong>of</strong> what is “sexual conduct” within the meaning <strong>of</strong> the SDP<br />
law. In In re Martin, 304 the proposed patient had engaged in three courses <strong>of</strong> sexually motivated<br />
stalking behavior with two different victims, twice being arrested with “rape murder” kits in his<br />
possession. Martin argued that the SDP law could not be applied to him (or was<br />
unconstitutionally vague as applied to him), because he had not engaged in a sexual assault. The<br />
court <strong>of</strong> appeals, however, held that the SDP law clearly applied to such conduct. 305 In another,<br />
unreported, case, the appellate court held that the sexually motivated stalking <strong>and</strong> harassment <strong>of</strong><br />
children, even without any physical contact with them, constituted harmful sexual conduct<br />
298<br />
In re Mely, No. A09-2110, 2010 WL 1658591, at *1-3 (Minn. Ct. App. Apr. 27, 2010)<br />
(unpublished).<br />
299<br />
In re Lentz, No. A07-670, 2007 WL 2770417, at *4 (Minn. Ct. App. Sept. 25, 2007)<br />
(unpublished).<br />
300<br />
Id.<br />
301<br />
In re Krych, No. A07-2069, 2008 WL 1800140, 1-3 (Minn. Ct. App. Apr. 22, 2008)<br />
(unpublished).<br />
302<br />
In re Christenson, No. A07-680, 2007 WL 2367627, at *1, 3-4 (Minn. Ct. App. Aug. 21,<br />
2007) (unpublished).<br />
303<br />
Id. at *3.<br />
304<br />
In re Martin, 661 N.W.2d 632 (Minn. Ct. App. 2003).<br />
305 Id. at 640.<br />
42
under the SDP law. 306 In a different case, the court <strong>of</strong> appeals held that a person’s four<br />
attempted kidnappings, three at knife point, constituted a course <strong>of</strong> harmful sexual conduct,<br />
even though the respondent had not sexually assaulted any <strong>of</strong> his victims, where the kidnappings<br />
were motivated by the respondent’s sexual impulses. 307<br />
In In re Conner, 308 the court <strong>of</strong> appeals rejected the argument that sexual assaults that are<br />
motivated by financial gain in promoting prostitution, rather than sexual gratification <strong>of</strong> the<br />
appellant, do not constitute “sexual” conduct. The court held that the SDP law does not require a<br />
sexual, rather than a financial, motive. 309 In In re Scott, 310 the court rejected the same argument,<br />
that the appellant’s sexual assaults were are motivated by financial gain in promoting<br />
prostitution, rather than sexual gratification, under both the SDP <strong>and</strong> SPP laws, stating that it was<br />
“both a reasonable <strong>and</strong> compelling inference” that Scott’s assaults were motivated at least in part<br />
by his sexual gratification. 311<br />
In In re Eggert, 312 the appellate court held that the person likely to suffer serious<br />
physical or emotional harm may be different from the object <strong>of</strong> the respondent’s sexual<br />
desires. In that case, when Eggert’s sexual partner broke <strong>of</strong>f her relationship with him, Egger<br />
stalked <strong>and</strong> made terroristic threats to the woman’s parents. The court held that the likely<br />
emotional harm to the parents met the statutory harmfulness requirement, because the statute<br />
requires only likely harm “to another.” 313<br />
The court <strong>of</strong> appeals will give deference to the district court’s determination <strong>of</strong> whether<br />
the proposed patient’s acts were sexual in nature. 314 Nonetheless, the person’s aggressive<br />
interactions with young girls, even though they did not include actual sexual contact, may help<br />
establish a pattern <strong>of</strong> fixation on young girls <strong>and</strong> therefore may help establish a course <strong>of</strong> harmful<br />
sexual conduct. 315<br />
3. SPP <strong>and</strong> SDP Laws: Injury to past victims not necessary.<br />
Neither the Rickmyer st<strong>and</strong>ard nor the st<strong>and</strong>ard in the SDP law require pro<strong>of</strong> that the<br />
victims actually suffered harm. Rather, the supreme court in Rickmyer stated that the court must<br />
306 In re Peterson, No. A07-681, 2007 WL 2472890, at *8-9 (Minn. Ct. App. Sept. 4, 2007)<br />
(unpublished).<br />
307 In re Guetter, No. A09-1358, 2010 WL 10425, at *1-3 (Minn. Ct. App. Jan. 5, 2010)<br />
(unpublished).<br />
308 In re Conner, No. A06-1134, 2006 WL 3593342 (Minn. Ct. App. Dec. 12, 2006)<br />
(unpublished).<br />
309 Id. at *4.<br />
310 In re Scott, No. A05-1356, 2005 WL 3470521 (Minn. Ct. App. Dec. 20, 2005) (unpublished).<br />
311 Id. at *3.<br />
312 In re Eggert, No. A09-0502, 2009 WL 2928775 (Minn. Ct. App. Sept. 15, 2009), review<br />
denied (Minn. Nov. 17, 2009) (unpublished).<br />
313 Id. at 2, 4-5.<br />
314 In re Stone, 711 N.W.2d 831, 839 (Minn. Ct. App. 2006).<br />
315 Id.<br />
43
find that “there is a substantial likelihood <strong>of</strong> serious physical or mental harm being inflicted on<br />
the victims.” 316 Many appellate court decisions have recognized that the st<strong>and</strong>ard is the<br />
likelihood <strong>of</strong> harm being inflicted, rather than whether the victims actually suffered such harm. 317<br />
This st<strong>and</strong>ard is sensible in light <strong>of</strong> the forward-looking purpose <strong>of</strong> the SPP <strong>and</strong> SDP<br />
laws. Their purpose is to protect members <strong>of</strong> the public from serious harm by confining <strong>and</strong><br />
providing treatment to persons who have demonstrated they are likely to engage in harmful<br />
conduct. 318 As the supreme court said in Linehan III, the SDP “Act calls for a general<br />
determination that seriously harmful sexual conduct is highly likely to occur.” 319 In light <strong>of</strong> this<br />
purpose, the most relevant factor is not whether past victims have suffered harm, but rather the<br />
type <strong>of</strong> conduct in which the person is likely to engage in the future, <strong>and</strong> whether the victims are<br />
likely to suffer serious physical or emotional harm from such acts.<br />
Testimony <strong>and</strong> other evidence about past victims may illustrate such likely future harm,<br />
but such evidence is not required. 320 Moreover, because the harmfulness st<strong>and</strong>ard considers the<br />
harm likely to result from the proposed patient’s conduct, it is immaterial that acts <strong>of</strong> others may<br />
have simultaneously caused harm to the victim. 321<br />
316<br />
Rickmyer, 519 N.W.2d at 190 (emphasis added).<br />
317<br />
See, e.g., In re Martin, 661 N.W.2d 632, 639 (Minn. Ct. App. 2003) (stating, “We note that<br />
the [SDP] presumption is not that a victim actually suffers serious emotional harm as a result <strong>of</strong> a<br />
defendant’s conduct; it is that the conduct creates a substantial likelihood <strong>of</strong> serious emotional<br />
harm”); In re Ramey, 648 N.W.2d 260, 270 (Minn. Ct. App. 2002) (stating “[t]he st<strong>and</strong>ard<br />
[under the SDP law] is not that [the conduct] must create physical or emotional harm; rather,<br />
there must be a substantial likelihood <strong>of</strong> harm”); In re Stone, 711 N.W.2d 831, 837 (Minn. Ct.<br />
App. 2006); In re Preston, 629 N.W.2d 104, 113 (Minn. Ct. App. 2001) (harmfulness shown<br />
where “court received expert testimony that the character <strong>of</strong> Preston’s acts was such that<br />
psychological harm would be a likely consequence for his victims”); In re Robb, 622 N.W.2d<br />
571, 571 (Minn. Ct. App. 2001) (discussing Blodgett, court says: “The physical <strong>and</strong> mental harm<br />
likely to be caused by Blodgett’s behavior was greater than the physical <strong>and</strong> mental harm likely<br />
to be caused by other sexual assaults that involve some physical force” (emphasis added)); In re<br />
Prather, No. C8-98-847, 1998 WL 887539, at *1 (Minn. Ct. App. Dec. 22, 1998) (unpublished),<br />
rem<strong>and</strong>ed (Minn. Feb. 24, 1999), appeal after rem<strong>and</strong>, No. C0-00-987, 2000 WL 1778321<br />
(Minn. Ct. App. Nov. 21, 2000) (unpublished) (court rejected claim that victim testimony<br />
necessary to show harm, holding that expert testimony “established the extreme harm that will<br />
likely be caused” by acts like Prather’s).<br />
318<br />
Blodgett, 510 N.W.2d at 914; Linehan III, 557 N.W.2d at 180, 181, 186, 190.<br />
319<br />
Linehan III, 557 N.W.2d at 190.<br />
320<br />
In re Krych, No. A07-2069, 2008 WL 1800140, at *1-2 (Minn. Ct. App. Apr. 22, 2008)<br />
(unpublished); In re Prather, No. C8-98-847, 1998 WL 887539, at *1 (Minn. Ct. App. Dec. 22,<br />
1998) (unpublished), rem<strong>and</strong>ed (Minn. Feb. 24, 1999), appeal after rem<strong>and</strong>, No. C0-00-987,<br />
2000 WL 1778321, at *3 (Minn. Ct. App. Nov. 21, 2000) (unpublished).<br />
321<br />
In re Martin, 661 N.W.2d 632, 639 (Minn. Ct. App. 2003).<br />
44
B. Likelihood Of Harmful <strong>Sexual</strong> Conduct.<br />
1. Degree <strong>of</strong> likelihood.<br />
The SDP law requires that the proposed patient “is likely to engage in acts <strong>of</strong> harmful<br />
sexual conduct. 322 In Linehan III, the state supreme court held that, in this context, “likely” must<br />
mean that it is “highly likely” that the person will engage in such conduct. The court said this<br />
interpretation is required in order to be consistent with the clear-<strong>and</strong>-convincing-evidence<br />
st<strong>and</strong>ard, <strong>and</strong> that it is compelled by due process concerns so that the proposed patient is not<br />
required to share equally with society the risk <strong>of</strong> an erroneous commitment. 323<br />
Similar to the SDP law, the SPP law requires that the proposed patient be “dangerous to<br />
other persons.” The supreme court has said that this means that the person must be “likely” to<br />
engage in sexually harmful acts. 324 While the court has not addressed whether the SPP law, like<br />
the SDP law, requires that it be “highly likely” that the person will engage in such acts, given the<br />
basis <strong>of</strong> the court’s ruling on this issue in Linehan III, it can be argued that the “highly likely”<br />
st<strong>and</strong>ard applies under the SPP law as well. 325<br />
2. Assessment <strong>of</strong> likelihood <strong>of</strong> sexual re<strong>of</strong>fense.<br />
Under each statute, the trial court must assess the likelihood that the person will engage<br />
in additional harmful sexual conduct. In Linehan I, the supreme court <strong>of</strong>fered guidance to trial<br />
courts in making this determination under the SPP law:<br />
[T]he trial court, in predicting serious danger to the public, should consider the<br />
following factors if such evidence is presented: (a) the person’s relevant<br />
demographic characteristics (e.g., age, education, etc.); (b) the person’s history <strong>of</strong><br />
violent behavior (paying particular attention to recency, severity, <strong>and</strong> frequency <strong>of</strong><br />
violent acts); (c) the base rate statistics for violent behavior among individuals <strong>of</strong><br />
this person’s background (e.g., data showing the rate at which rapists recidivate,<br />
the correlation between age <strong>and</strong> criminal sexual activity, etc.); (d) the sources <strong>of</strong><br />
stress in the environment (cognitive <strong>and</strong> affective factors which indicate that the<br />
person may be predisposed to cope with stress in a violent or nonviolent manner);<br />
(e) the similarity <strong>of</strong> the present or future context to those contexts in which the<br />
person has used violence in the past; <strong>and</strong> (f) the person’s record with respect to<br />
sex therapy programs. In reviewing psychopathic personality commitments in the<br />
future, we will look to see whether these factors have been considered,<br />
322<br />
Minn. Stat. § 253B.02, subd. 18c(a)(3) (2009).<br />
323<br />
Linehan III, 557 N.W.2d at 180 (citing Addington v. Texas, 441 U.S. 418, 427, 99 S. Ct.<br />
1804, 1810 (1979)).<br />
324<br />
Linehan I, 518 N.W.2d at 613.<br />
325<br />
Joelson v. O’Keefe, 594 N.W.2d 905, 911 (Minn. Ct. App. 1999), contains a confusing<br />
discussion <strong>of</strong> this issue. It appears to say that it was unnecessary for the committing court (prior<br />
to Linehan III) to specifically use a “highly likely” st<strong>and</strong>ard for SPP commitments, because it<br />
was already clear that the clear-<strong>and</strong>-convincing st<strong>and</strong>ard <strong>of</strong> pro<strong>of</strong> applied to such cases.<br />
45
particularly where, as here, there is a large gap <strong>of</strong> time between the petition for<br />
commitment <strong>and</strong> the appellant’s last sexual misconduct. 326<br />
While Linehan I concerned only the SPP law, the supreme court subsequently held in<br />
Linehan III that the same factors may be considered in determining likelihood <strong>of</strong> sexual<br />
re<strong>of</strong>fense under the SDP law. 327<br />
Several <strong>of</strong> the Linehan factors refer to “violence” or “violent behavior.” Some persons<br />
have argued, unsuccessfully, that the likelihood factors in Linehan I require that the person have<br />
engaged in “violent” behavior. The six dangerousness factors are taken from a book by<br />
Pr<strong>of</strong>essor John Monahan concerning prediction <strong>of</strong> violent behavior, 328 <strong>and</strong> the words “violent”<br />
<strong>and</strong> “violence” in the list <strong>of</strong> factors are taken from Pr<strong>of</strong>essor Monahan’s list. While Monahan<br />
was specifically addressing the prediction <strong>of</strong> violence, Linehan I was addressing the prediction <strong>of</strong><br />
sexually harmful behavior meeting the st<strong>and</strong>ard in Rickmyer, decided the same day as Linehan I.<br />
Thus, the court <strong>of</strong> appeals has held that it is the occurrence <strong>of</strong> this type <strong>of</strong> behavior, not<br />
necessarily “violent” behavior, that is important. 329 Indeed, in one case under the SDP statute,<br />
the court <strong>of</strong> appeals held that the Linehan factors included consideration <strong>of</strong> sexual stalking<br />
behavior even where no contact sex <strong>of</strong>fense had occurred. 330<br />
In one case, the court <strong>of</strong> appeals held that the proposed patient’s “argument that his<br />
conduct was not violent is contradicted by documentary evidence <strong>of</strong> his use <strong>of</strong> coercion, threats<br />
<strong>and</strong> physical force to obtain the children’s compliance.” 331 In another case, the court emphasized<br />
that violence <strong>of</strong> the person’s conduct is only one <strong>of</strong> the Linehan factors to be considered. 332<br />
The supreme court has held that none <strong>of</strong> the Linehan I factors predominates over the<br />
others. In Linehan III, Linehan argued that use <strong>of</strong> actuarial methods <strong>and</strong> base rates is the only<br />
permissible means <strong>of</strong> risk assessment. The trial court had addressed each <strong>of</strong> the Linehan<br />
dangerousness factors, <strong>and</strong> had concluded that the statistical evidence was <strong>of</strong> limited utility. 333<br />
Moreover, the trial court considered several factors not included on the Linehan I list, including<br />
Linehan’s continuing attraction to young girls <strong>and</strong> his recently displayed mental features<br />
326 Linehan I, 518 N.W.2d at 614.<br />
327 Linehan III, 557 N.W.2d at 189.<br />
328 John Monahan, Predicting Violent Behavior: An Assessment <strong>of</strong> Clinical Techniques (1981),<br />
cited in Linehan I, 518 N.W.2d at 614.<br />
329 In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at *5 (Minn. Ct. App. June 20,<br />
2000) (addressing commitment under SPP <strong>and</strong> SDP statutes); In re Norton, No. A05-946, 2005<br />
WL 2979631, at *4 (Minn. Ct. App. Nov. 8, 2005) (unpublished).<br />
330 In re Martin, No. A04-1634, 2005 WL 354088, at *4 (Minn. Ct. App. Feb. 15, 2005)<br />
(unpublished).<br />
331<br />
In re Lund, No. A06-1657, 2007 WL 584175, at *2 (Minn. Ct. App. Feb. 27, 2007)<br />
(unpublished).<br />
332<br />
In re Alverson, No. A06-1567, 2007 WL 447159, at 8 (Minn. Ct. App. Feb. 13, 2007)<br />
(unpublished).<br />
333 Linehan III, 557 N.W.2d at 178.<br />
46
including impulsiveness <strong>and</strong> lack <strong>of</strong> remorse. 334 The supreme court rejected Linehan’s argument<br />
that the dangerousness assessment must turn on statistical evidence, saying “dangerousness<br />
prediction under the SDP Act is not simply a matter for statisticians.” 335 The court explained:<br />
Linehan’s argument is contrary to the multi-factor analysis for dangerousness<br />
prediction outlined in Linehan I . . . . Statistical evidence <strong>of</strong> recidivism is only<br />
one <strong>of</strong> the six factors. In this case, the district court properly followed Linehan I<br />
<strong>and</strong> evaluated evidence pertaining to each <strong>of</strong> the six factors for not error to<br />
consider evidence not specifically listed in Linehan I prediction. It was. . . .<br />
Linehan I did not foreclose good faith attempts by the courts to isolate the most<br />
important factors in predicting harmful sexual conduct. 336<br />
“It is not necessary that all six [Linehan] factors weigh in favor <strong>of</strong> commitment.” 337 Rather, the<br />
supreme court in Linehan III said that balancing the various factors relating to dangerousness is<br />
“largely for the district court <strong>and</strong> its assessment <strong>of</strong> expert testimony.” 338 The court <strong>of</strong> appeals<br />
has frequently made similar holdings, usually citing Linehan III. 339 In many cases, the appellate<br />
court has emphasized that actuarial assessment is only one <strong>of</strong> the factors to be considered, <strong>and</strong><br />
that it is erroneous to suggest that the exclusive focus must be on such assessments. 340<br />
334<br />
Id.<br />
335<br />
Id. at 191.<br />
336<br />
Id. at 189.<br />
337<br />
In re Pyron, No. A08-638, 2008 WL 4007433 at *3, 4 (Minn. Ct. App. Sept.2, 2008)<br />
(unpublished).<br />
338<br />
Linehan III, 557 N.W.2d at 190.<br />
339<br />
In re Braylock, No. A06-1053, 2006 WL 3409875, at *3 (Minn. Ct. App. Nov. 28, 2006)<br />
(unpublished) (approving trial court findings de-emphasizing weight <strong>of</strong> the actuarial tools on<br />
facts <strong>of</strong> case); In re Deloach, No. A05-985, 2005 WL 2496010, at *4 (Minn. Ct. App. Oct. 11,<br />
2005) (unpublished) (holding that trial court did not err in considering additional factors <strong>and</strong><br />
isolating most important factors); In re Martin, No. A04-1634, 2005 WL 354088, at *4 (Minn.<br />
Ct. App. Feb. 15, 2005) (unpublished) (approving trial court’s efforts to “isolate the most<br />
important factors”). In In re Shaw, Nos. C3-96-2131, C9-96-2196, 1997 WL 243454 (Minn. Ct.<br />
App. May 13, 1997) (unpublished), the court <strong>of</strong> appeals held that, even if the proposed patient<br />
could demonstrate that the statistical methods employed in some <strong>of</strong> the testing mechanisms were<br />
wholly invalid, that would not be determinative because test results are only part <strong>of</strong> the evidence<br />
to be considered.<br />
340<br />
In re Guetter, No. A09-1358, 2010 WL 10425k at *4 (Minn. Ct. App. Jan. 5, 2010)<br />
(unpublished); In re Webber, No. A08-1903, 2009 WL 1119239, at *4 (Minn. Ct. App. Apr. 28,<br />
2009), review denied (Minn. June 30, 2009) (unpublished); In re Pyron, No. A08-638, 2008 WL<br />
4007433 at *3, 4 (Minn. Ct. App. Sept. 2, 2008) (unpublished); In re Rick, No. A06-1621, 2007<br />
WL 333885, at *3 (Minn. Ct. App. Feb. 6, 2007) (unpublished) (upholding commitment where<br />
actuarial tools showed only low to moderate likelihood, but other factors supported likelihood <strong>of</strong><br />
re<strong>of</strong>fense); In re Norton, No. A05-946, 2005 WL 2979631 (Minn. Ct. App. Nov. 8, 2005)<br />
(unpublished) (rejecting appellant’s argument for sole reliance on actuarial results, saying,<br />
“Overemphasis on one <strong>of</strong> the Linehan factors is misplaced”); In re Paulsen, No. A05-1997, 2006<br />
WL 619119, at *2-3 (Minn. Ct. App. Mar. 14, 2006) (unpublished); In re Rustman,<br />
47
The appellate court has noted testimony that actuarial tools, especially the “Static-99,”<br />
are likely to underestimate actual recidivism. 341<br />
In other cases, the court <strong>of</strong> appeals considered, in addition to the Linehan factors, the<br />
escalation in the person’s history <strong>of</strong> sexual misconduct, his lack <strong>of</strong> remorse or empathy even<br />
after sex <strong>of</strong>fender treatment, <strong>and</strong> his re<strong>of</strong>fense while under a suspended jail sentence, 342 re<strong>of</strong>fense<br />
while on probation despite known consequences <strong>and</strong> inadequate insight, 343 i.e., the “degree to<br />
which the [proposed patient] appreciates the gravity <strong>of</strong> his condition.” 344<br />
Linehan also argued in Linehan III that the district court should specify the “time<br />
horizon” for its prediction, <strong>and</strong> suggested that such a horizon must be short term. The supreme<br />
court responded that “the Act does not limit the prediction by time period.” 345<br />
One <strong>of</strong> the Linehan I factors is the person’s behavioral history, considering various<br />
factors including recency. Proposed patients in SPP/SDP commitment cases have sometimes<br />
asserted that their sexual misconduct is remote in time, <strong>and</strong> that they have behaved well in a<br />
prison environment. They argue that these facts show that they are unlikely to commit additional<br />
sexual <strong>of</strong>fenses. The court <strong>of</strong> appeals has observed that an appellant’s behavior as a model<br />
prisoner <strong>and</strong> his participation in sex <strong>of</strong>fender treatment may mitigate against likelihood <strong>of</strong><br />
re<strong>of</strong>fense. 346 However, the appellate court has held on numerous occasions that “[g]ood<br />
behavior in the artificial atmosphere <strong>of</strong> a prison or hospital is not determinative” where other<br />
No. A06-266, 2006 WL 1738283, at *2 (Minn. Ct. App. Jun. 27, 2006) (unpublished); In re<br />
Fl<strong>and</strong>ers, No. A05-2380, 2006 WL 998208, at *6 (Minn. Ct. App. Apr. 18, 2006) (unpublished);<br />
In re Fisher, No. A05-579, 2005 WL 2209079, at *6 (Minn. Ct. App. Sept. 13, 2005)<br />
(unpublished).<br />
341 In re Webber, No. A08-1903, 2009 WL 1119239, at *4 (Minn. Ct. App. Apr. 28, 2009),<br />
review denied (Minn. June 30, 2009) (unpublished); In re Owens, No. A08-0430, 2008 WL<br />
2889864, at *2 (Minn. Ct. App. July 29, 2008), review denied (Minn. Oct. 21, 2008)<br />
(unpublished); In re Lentz, No. A07-670, 2007 WL 2770417, at *5 (Minn. Ct. App. Sept. 25,<br />
2007) (unpublished); In re Mosby, No. A07-755, 2007 WL 2781806, at *2 (Minn. Ct. App.<br />
Sept. 25, 2007) (unpublished); In re Luhmann, No. A07-912, 2007 WL 2417341, at *3 (Minn.<br />
Ct. App. Aug. 28, 2007) (unpublished); In re Christenson, No. A07-680, 2007 WL 2367627, at<br />
*6 (Minn. Ct. App. Aug. 21, 2007) (unpublished); In re Olson, No. A06-1601, 2007 WL 509693,<br />
at *3 (Minn. Ct. App. Feb. 20, 2007) (unpublished); In re Deloach, No. A05-985, 2005 WL<br />
2496010, at *4 (Minn. Ct. App. Oct. 11, 2005) (unpublished).<br />
342 In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *6 (Minn. Ct. App. Dec. 15, 1999)<br />
(unpublished).<br />
343 In re Foley, No. A04-2340, 2005 WL 1154334 at *5 (Minn. Ct. App. May 17, 2005)<br />
(unpublished).<br />
344 In re Peria, No. A06-1452, 2007 WL 235632, at *3 (Minn. Ct. App. Jan. 30, 2007)<br />
(unpublished).<br />
345 Linehan III, 557 N.W.2d at 190.<br />
346 In re Pirkl, 531 N.W.2d 902, 909-10 (Minn. Ct. App. 1995); In re Muller, No. C7-96-141,<br />
1997 WL 600457 (Minn. Ct. App. Sept. 30, 1997) (unpublished).<br />
48
evidence indicates likelihood <strong>of</strong> re<strong>of</strong>fense. 347 In one case, the court held that being on parole<br />
also constituted such an “artificial environment.” 348 Conversely, the fact that a person re<strong>of</strong>fends<br />
or engages in inappropriate sexual conduct while in prison or in treatment supports a finding that<br />
he is likely to re<strong>of</strong>fend. 349<br />
Likewise, in a number <strong>of</strong> cases the court <strong>of</strong> appeals has upheld SDP commitments where<br />
the persons had been released to the community for substantial periods after their last sex<br />
<strong>of</strong>fenses, without re<strong>of</strong>fending. In several <strong>of</strong> these cases, the court relied on the fact that the<br />
persons continually relapsed in their use <strong>of</strong> drugs or alcohol after release from prison, <strong>and</strong> that<br />
substance use had been a factor in their sexual <strong>of</strong>fenses. 350 In one <strong>of</strong> these cases, the appellant<br />
had also used pornography, which was a precursor to his sexual <strong>of</strong>fending. 351 In several other<br />
cases, the proposed patient had engaged in “<strong>of</strong>fense cycle” behaviors, including contacting<br />
minors in person or on the internet, using alcohol, accessing <strong>and</strong> possessing pornography. 352 In<br />
347 In re Linehan, 503 N.W.2d 142, 147 (Minn. Ct. App. 1993), rev’d on other grounds, 518<br />
N.W.2d 609 (Minn. 1994); see also In re Pirkl, 53l N.W.2d 902, 909-10 (Minn. Ct. App. 1995);<br />
In re Hollie, No. A09-0579, 2009 WL 2596071, at *4 (Minn. Ct. App. Aug. 25, 2009), review<br />
denied (Minn. Oct. 28, 2009) (unpublished); In re Eberhardt, No. A06-2044, 2007 WL 738719,<br />
at *2 (Minn. Ct. App. Mar. 13, 2007) (unpublished); In re Knutson, No. A05-1204, 2005 WL<br />
3159930, at *4 (Minn. Ct. App. Nov. 29, 2005) (unpublished); In re Coker, No. C7-00-873, 2000<br />
WL 1617874, at *2 (Minn. Ct. App. Oct. 31, 2000) (unpublished); In re Wilson, No. C3-00-434,<br />
2000 WL 1182807, at *5 (Minn. Ct. App. Aug. 22, 2000) (unpublished); In re Muller, No. C7-<br />
96-141, 1997 WL 600457 (Minn. Ct. App. Sept. 30, 1997) (unpublished); In re Sadiki, No. C3-<br />
93-1045, 1993 WL 355906 (Minn. Ct. App. Sept. 14, 1993) (unpublished), rem<strong>and</strong>ed (Minn.<br />
Jan. 24, 1995); aff’d after rem<strong>and</strong>, No. C7-95-419, 1995 WL 311799 (Minn. Ct. App. May 23,<br />
1995); In re Crocker, 1997 WL 471481 (Minn. Ct. App. 1997) (unpublished); In re Vernon, No.<br />
C5-92-2090, 1993 WL 71535 (Minn. Ct. App. Mar. 16, 1993) (unpublished), summ. aff’d, 1994<br />
WL 475063 (Minn. 1994).<br />
348 In re Hammill, No. A09-1291, 2009 WL 3818393, at *3 (Minn. Ct. App. Nov. 17, 2009)<br />
(unpublished).<br />
349 In re Preston, 629 N.W.2d 104, 114 (Minn. Ct. App. 2001); In re Hollie, No. A09-0579, 2009<br />
WL 2596071, at *4 (Minn. Ct. App. Aug. 25, 2009), review denied (Minn. Oct. 28, 2009)<br />
(unpublished); In re Swedeen, No. A07-805, 2007 WL 2770440, at *7 (Minn. Ct. App. Sept. 25,<br />
2007) (unpublished).<br />
350 In re Lindsey, No. A07-80, 2007 WL 1323597, at *4 (Minn. Ct. App. May 8, 2007)<br />
(unpublished); In re Eberhart, No. A06-2044, 2007 WL 738719, at *2 (Minn. Ct. App. Mar. 13,<br />
2007) (unpublished); In re Burnham, No. A05-972, 2005 WL 2979646, at *2 (Minn. Ct. App.<br />
Nov. 8, 2005) (unpublished); In re Yazzie, No. A05-750, 2005 WL 2130605, at 3 (Minn. Ct.<br />
App. Sept. 6, 2005) (unpublished); In re Brown, No. A05-1500, 2006 WL 44354, at *6 (Minn.<br />
Ct. App. Jan. 10, 2006) (unpublished); In re Tucker, No. A05-221, 2005 WL 1743823, at *3<br />
(Minn. Ct. App. Jul. 26, 2005) (unpublished).<br />
351 In re Burnham, No. A05-972, 2005 WL 2979646, at *2 (Minn. Ct. App. Nov. 8, 2005)<br />
(unpublished).<br />
352 In re Jannetta, No. A07-2049, 2008 WL 669115, at *4 (Minn. Ct. App. Mar. 11, 2008)<br />
(unpublished); In re Foster, No. A07-1564, 2008 WL 133918, at *3 (Minn. Ct. App. Jan. 15,<br />
49
one case, the person had engaged in violent <strong>of</strong>fenses that, although not sexual assaults, were<br />
similar to his earlier sex <strong>of</strong>fenses. 353 In yet another case, during the period <strong>of</strong> release, the<br />
appellant established a relationship giving him access to young boys despite close monitoring<br />
<strong>and</strong> warnings to avoid such relationships. 354 And in two cases the court noted that the appellant<br />
had been in prison <strong>and</strong> was on parole during the time he was in the community, lessening his<br />
opportunity for re<strong>of</strong>fense. 355 Finally, in another case, the appellate court observed that the<br />
court’s examiner concluded that the period <strong>of</strong> release in the community without re<strong>of</strong>fense was<br />
not significant, inasmuch as the appellant had had similar periods in the past, followed by new<br />
sex <strong>of</strong>fense. 356<br />
Some proposed patients have argued that they are unlikely to re<strong>of</strong>fend due to their<br />
advanced age or poor physical condition. The court <strong>of</strong> appeals has upheld such commitments<br />
where the evidence showed the person’s dangerousness, notwithst<strong>and</strong>ing the limitations <strong>of</strong> age or<br />
disability. 357 The court has noted an examiner’s testimony that “an extrafamilial pedophile . . . is<br />
not subject to typical patterns <strong>of</strong> desistance with age.” 358<br />
One <strong>of</strong> the Linehan factors is “the person’s record with respect to sex therapy programs.”<br />
The court <strong>of</strong> appeals has noted that a person may properly be termed an “untreated <strong>of</strong>fender”<br />
where he has completed treatment, but then committed a sex <strong>of</strong>fense afterwards. 359 And a person<br />
who has recently completed sex <strong>of</strong>fender treatment may nonetheless be found highly likely to<br />
2008) (unpublished); In re Alverson, No. A06-1567, 2007 WL 447159, at *2-4, 6-7 (Minn. Ct.<br />
App. Feb. 13, 2007) (unpublished).<br />
353 In re Lindsey, No. A07-80, 2007 WL 1323597, at *4 (Minn. Ct. App. May 8, 2007)<br />
(unpublished), review denied (Minn. July 17, 2007).<br />
354 In re McDeid, No. C4-00-166, 2000 WL 781279, at *2 (Minn. Ct. App. June 20, 2000)<br />
(unpublished).<br />
355 In re Hammill, No. A09-1291, 2009 WL 3818393, at *3 (Minn. Ct. App. Nov. 17, 2009)<br />
(unpublished); In re Yazzie, No. A05-750, 2005 WL 2130605, at 3 (Minn. Ct. App. Sept. 6,<br />
2005) (unpublished).<br />
356 In re White, No. A05-231, 2005 WL 1804919, at *4 (Minn. Ct. App. Aug. 2, 2005)<br />
(unpublished).<br />
357 In re Lindsey, No. A07-80, 2007 WL 1323597, at *4 (Minn. Ct. App. May 8, 2007)<br />
(unpublished); In re Braylock, No. A06-1053, 2006 WL 3409875, at *3 (Minn. Ct. App.<br />
Nov. 28, 2006) (unpublished) (noting that, under appellant’s facts, “age should not act as a<br />
mitigating factor”); In re Williams, No. A05-1271, 2005 WL 3470517, at *7 (Minn. Ct. App.<br />
Dec. 20, 2005) (unpublished) (noting that experts distinguished appellant from study showing<br />
reduced likelihood <strong>of</strong> re<strong>of</strong>fense after age 40); In re Dunlavey, No. C1-97-1439, 1998 WL 2423<br />
(Minn. Ct. App. Jan. 2, 1998) (unpublished); In re Crocker, No. C0-95-2500, 1996 WL 192974<br />
(Minn. Ct. App. Apr. 23, 1996), aff’d (Minn. Jan. 21, 1997); In re Crocker, No. C7-97-604, 1997<br />
WL 471481 (Minn. Ct. App. Aug. 19, 1997) (unpublished); In re Young, No. C1-94-1779, 1994<br />
WL 654508 (Minn. Ct. App. Nov. 22, 1994) (unpublished).<br />
358 In re Gorden, No. A06-43, 2006 WL 1806464, at 5 (Minn. Ct. App. July 3, 2006)<br />
(unpublished).<br />
359 In re Stone, 711 N.W.2d 831, 840 (Minn. Ct. App. 2006).<br />
50
e<strong>of</strong>fend, especially where the person had previously completed sex <strong>of</strong>fender treatment but then<br />
re<strong>of</strong>fended. 360<br />
Where the experts conclude that there is a high likelihood that the proposed patient will<br />
relapse in drug or alcohol use <strong>and</strong> that, if he does, he is highly likely to sexually re<strong>of</strong>fend, the<br />
commitment st<strong>and</strong>ard is met. 361 And where a person has completed chemical dependency<br />
treatment, it is significant that he later relapsed by using drugs or alcohol. 362<br />
In one case, the proposed patient argued that he was not highly likely to re<strong>of</strong>fend because<br />
he was taking a chemical castration drug. The court <strong>of</strong> appeals affirmed the district court’s<br />
rejection <strong>of</strong> that argument, noting expert testimony that the effects <strong>of</strong> the drug could be<br />
overridden by other medication <strong>and</strong> that the sexual urge was only one part <strong>of</strong> the person’s<br />
dangerousness, so that he needed cognitive treatment in addition to the drug treatment in order to<br />
be safely released. 363<br />
Linehan I did not hold that all <strong>of</strong> the listed factors must be considered in every case,<br />
but rather that those factors should be considered “if such evidence is presented.” 364 The court <strong>of</strong><br />
appeals has expressed no concern where the evidence did not address base rate statistics, 365 or<br />
where the trial court did not make findings relating to all <strong>of</strong> the Linehan I factors. 366<br />
C. Least Restrictive Alternative.<br />
In 1998 in In re Senty-Haugen, 367 the Minnesota Supreme Court held that the<br />
least-restrictive-alternative requirement that applies to commitments for mental illness, mental<br />
retardation <strong>and</strong> chemical dependency does not apply to commitments as mentally ill <strong>and</strong><br />
dangerous, SPP or SDP. Previously, the court <strong>of</strong> appeals had held that this requirement did<br />
apply to SPP <strong>and</strong> SDP commitments. 368<br />
360 In re Braaten, No. A06-659, 2006 WL 2474274, at *6-7 (Minn. Ct. App. Aug. 29, 2006)<br />
(unpublished).<br />
361 In re Thompson, No. A07-998, 2007 WL 2993851, at *4 (Minn. Ct. App. Oct. 16, 2007)<br />
(unpublished).<br />
362 In re Williams, No. A07-1813, 2008 WL 668851, at *3 (Minn. Ct. App. Mar. 22, 2008)<br />
(unpublished).<br />
363 In re Peria, No. A06-1452, 2007 WL 235632, at *4 (Minn. Ct. App. Jan. 30, 2007)<br />
(unpublished).<br />
364 Linehan I, 518 N.W.2d at 614.<br />
365 In re Pirkl, 531 NW.2d 902, 909 (Minn. Ct. App. 1995); In re Meyer, No. C7-96-981, 1996<br />
WL 537500 (Minn. Ct. App. Sept. 24, 1996) (unpublished).<br />
366 In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)<br />
(unpublished).<br />
367 In re Senty-Haugen, 583 N.W.2d 266 (Minn. 1998).<br />
368 In re Bieganowski, 520 NW.2d 525, 531 (Minn. Ct. App. 1994); Pirkl, 531 NW.2d at 910; In<br />
re Ayers, 570 N.W.2d 21, 25 (Minn. Ct. App. 1997); In re Hall, No. C9-96-1940, 1997 WL<br />
228971 (Minn. Ct. App. May 6, 1997) (unpublished).<br />
51
In 1999, however, the Legislature enacted a new less-restrictive-alternative provision for<br />
persons committed as MI&D, SPP or SDP. 369 The new law gives the proposed patient the<br />
opportunity to show that there is an appropriate alternative to the state sex <strong>of</strong>fender program:<br />
In commitments under this section, the court shall commit the patient to a secure<br />
treatment facility 370 unless the patient establishes by clear <strong>and</strong> convincing<br />
evidence that a less restrictive treatment program is available that is consistent<br />
with the patient’s treatment needs <strong>and</strong> the requirements <strong>of</strong> public safety. 371<br />
The court <strong>of</strong> appeals has held that this provision does not unconstitutionally shift the burden <strong>of</strong><br />
pro<strong>of</strong> to the proposed patient. 372<br />
The court <strong>of</strong> appeals reviews a trial court’s decision not to adopt a less restrictive<br />
alternative placement under a clearly erroneous st<strong>and</strong>ard. 373<br />
The court <strong>of</strong> appeals has held that, while a proposed patient is provided the opportunity to<br />
prove that a less restrictive treatment program is available, he does not have the right to be<br />
placed in it. 374 In one case, the appellate court stated that the committing court is required to<br />
consider less restrictive alternatives in every case, citing Minn. Stat. § 253B.09 (2004), the<br />
provision applicable to mental illness, chemical dependency <strong>and</strong> mental retardation<br />
commitments, rather than to the special less-restrictive alternative provisions in Minn. Stat.<br />
369<br />
1999 Minn. Laws, ch. 118, §§ 3, 5, codified at Minn. Stat. §§ 253B.18, subd. 1 <strong>and</strong> 253B.185,<br />
subd. 1 (2009).<br />
370<br />
A “secure treatment facility,” for persons committed as SPP or SDP, means the Minnesota<br />
Sex Offender Program. Minn. Stat. § 253B.02, subd. 18a (2009).<br />
371<br />
Minn. Stat. § 253B.185, subd. 1 (2009).<br />
372<br />
In re Kindschy, 634 N.W.2d 723, 731 (Minn. Ct. App. 2001), review denied (Minn. 2001); In<br />
re Peria, No. A06-1452, 2007 WL 235632, at *6 (Minn. Ct. App. Jan. 30, 2007) (unpublished);<br />
In re Paulsen, No. A05-1997, 2006 WL 619119, at *3 n.1 (Minn. Ct. App. Mar. 14, 2006)<br />
(unpublished); In re Daniels, No. A03-623, 2003 WL 22707418, at *5 (Minn. Ct. App. Nov. 18,<br />
2003) (unpublished).<br />
373<br />
See, e.g., In re Thulin, 660 N.W.2d 140, 144 (Minn. Ct. App. 2003); In re Krych,<br />
No. A07-2069, 2008 WL 1800140, at *5 (Minn. Ct. App. Apr. 22, 2008) (unpublished); In re<br />
Williams, No. A07-1813, 2008 WL 668851, at *3 (Minn. Ct. App. Mar. 22, 2008) (unpublished);<br />
In re Semler, No. A06-2213, 2007 WL 969081, at *4 (Minn. Ct. App. Apr. 3, 2007)<br />
(unpublished); In re Olson, No. A06-1601, 2007 WL 509693, at *4 (Minn. Ct. App. Feb. 20,<br />
2007) (unpublished); In re Rick, No. A06-1621, 2007 WL 333885, at *3 (Minn. Ct. App. Feb. 6,<br />
2007) (unpublished).<br />
374<br />
In re Kindschy, 634 N.W.2d 723, 731 (Minn. Ct. App. 2001); see also, e.g., In re Williams,<br />
No. A07-1813, 2008 WL 668851, at *4 (Minn. Ct. App. Mar. 22, 2008) (unpublished); In re<br />
Conner, No. A06-1134, 2006 WL 3593342, at *7 (Minn. Ct. App. Dec. 12, 2006) (unpublished);<br />
In re Hopson, No. A06-976, 2006 WL 3199160, at *5 (Minn. Ct. App. Nov. 7, 2006)<br />
(unpublished).<br />
52
§§ 253B.18 <strong>and</strong> 253B.185, which apply to SPP <strong>and</strong> SDP commitments. 375 This reference was<br />
apparently mistaken.<br />
In considering alternatives, the court may consider factors such as the need for security,<br />
whether the proposed patient needs long-term treatment, <strong>and</strong> what type <strong>of</strong> treatment is<br />
required. 376 Supervised release under the Department <strong>of</strong> Corrections is appropriately rejected as<br />
a less restrictive alternative where the person has previously absconded (three times) while on<br />
supervised release. 377<br />
All parts <strong>of</strong> the less restrictive treatment plan must meet the person’s treatment needs <strong>and</strong><br />
the requirements <strong>of</strong> public safety. Where a proposed plan required halfway house placement for<br />
at least nine months, but there was no showing that a halfway house placement was available for<br />
more than two months, the proposed patient did not meet his burden. 378 Similarly, where a<br />
proposed patient was taking a drug that achieved “chemical castration,” but other parts <strong>of</strong> a<br />
release plan could not be accomplished (including residence <strong>and</strong> payment for the drug), the trial<br />
court did not err in rejecting the plan. 379<br />
A less restrictive alternative is not appropriate unless it is presently available. 380 If a less<br />
restrictive alternative does not exist, the court may commit the person to a more-restrictive<br />
alternative. 381 The court cannot order that a community placement be developed, where none<br />
375 In re Olson, No. A05-2274, 2006 WL 1073410, at *7 (Minn. Ct. App. Apr. 25, 2006)<br />
(unpublished).<br />
376 Bieganowski, 520 N.W.2d at 531; Pirkl, 531 N.W.2d at 910; In re Jones, No. C2-01-1293,<br />
2001 WL 1491248, at *3 (Minn. Ct. App. Nov. 27, 2001) (unpublished); In re Larson, No. C6-<br />
97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998) (unpublished); see also In re Swan,<br />
No. CX-97-2041, 1998 WL 217190 (Minn. Ct. App. May 5, 1998) (unpublished) (holding it<br />
within trial court’s discretion to reject examiner’s recommendation for halfway house, electronic<br />
monitoring <strong>and</strong> treatment at University <strong>of</strong> Minnesota).<br />
377 In re Coker, No. C7-00-873, 2000 WL 1617874, at *4 (Minn. Ct. App. Oct. 31, 2000)<br />
(unpublished).<br />
378<br />
In re Rick, No. A06-1621, 2007 WL 333885, at *3-4 (Minn. Ct. App. Feb. 6, 2007)<br />
(unpublished).<br />
379<br />
In re Peria, No. A06-1452, 2007 WL 235632, at *7-8 (Minn. Ct. App. Jan. 30, 2007)<br />
(unpublished).<br />
380 In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)<br />
(unpublished); In re Dunlavey, No. C1-97-1439, 1998 WL 2423 (Minn. Ct. App. Jan. 2, 1998)<br />
(unpublished) (court rejected proposed patient’s proposal that he live in the community with two<br />
round-the-clock guards, where there was no showing that program existed, that it was funded, or<br />
that proposed patient would be accepted); In re Hall, No. C9-96-1940, 1997 WL 228971 (Minn.<br />
Ct. App. May 6, 1997) (unpublished).<br />
381 In re Comeau, No. A08-1106, 2008 WL 5336104, at *6 (Minn. Ct. App. Dec. 23, 2008)<br />
(unpublished), citing In re McPherson, 476 N.W.2d 520, 522 (Minn. Ct. App. 1991).<br />
53
exists. 382 A trial court did not err in rejecting an otherwise-available alternative placement,<br />
where there was no funding mechanism to pay for it. 383<br />
Likewise, in order for the person to show the availability <strong>of</strong> a less restrictive alternative,<br />
he must prove “that an alternative program exists that would be willing to accept the defendant<br />
for judicially committed sex-<strong>of</strong>fender treatment.” 384 The proposed patient must identify a<br />
specific program that meets the statutory st<strong>and</strong>ard. 385 Thus, the trial court does not err in<br />
rejecting the patient’s proposed less restrictive alternatives where he produces no evidence that<br />
he was eligible for the programs or that they would accept him. 386<br />
Where a person argued that he was developmentally disabled (“DD”), <strong>and</strong> therefore<br />
should be committed only as DD rather than as SPP/SDP, but the evidence showed that he<br />
satisfied the SPP/SDP requirements, the statute required that he be committed to a secure<br />
treatment facility unless he showed that a DD commitment would satisfy both his treatment<br />
needs <strong>and</strong> the requirements <strong>of</strong> public safety. 387 The trial court appropriately rejected the<br />
argument for commitment to a state DD treatment facility where there was no evidence that the<br />
person would be admitted to the facility, that it could treat persons with his particular needs, or<br />
that it could provide sufficient security for the community. 388<br />
382<br />
In re Hall, No. C9-96-1940, 1997 WL 228971 (Minn. Ct. App. May 6, 1997) (unpublished).<br />
383<br />
In re Senty-Haugen, No. C9-96-1095, 1997 WL 328015 (Minn. Ct. App. June 17, 1997)<br />
(unpublished), aff’d on other grounds, 583 N.W.2d 266 (Minn. 1998).<br />
384<br />
In re Peria, No. A06-1452, 2007 WL 235632, at *6 (Minn. Ct. App. Jan. 30, 2007)<br />
(unpublished).<br />
385<br />
In re Brown, No. A07-593, 2007 WL 2367601, at *2 (Minn. Ct. App. Aug. 21, 2007)<br />
(unpublished); In re Hilton, No. A06-2261, 2007 WL 1532151, at *9 (Minn. Ct. App. May 29,<br />
2007) (unpublished).<br />
386<br />
In re Jannetta, No. A07-2049, 2008 WL 669115, at *4 (Minn. Ct. App. Mar. 11, 2008)<br />
(unpublished); In re Eberhart, No. A06-2044, 2007 WL 738719, at *4 (Minn. Ct. App. Mar. 13,<br />
2007) (unpublished); In re Fageroos, No. A06-1947, 2007 WL 509748, at *4 (Minn. Ct. App.<br />
Feb. 20, 2007) (unpublished); In re Braylock, No. A06-1053, 2006 WL 3409875, at *4 (Minn.<br />
Ct. App. Nov. 28, 2006) (unpublished) (appellant did not establish the pr<strong>of</strong>fered program was<br />
available to him); In re Braaten, No. A06-659, 2006 WL 2474274, at *10 (Minn. Ct. App.<br />
Aug. 29, 2006) (unpublished) (appellant had not applied to program); In re Kittrell,<br />
No. A05-2370, 2006 WL 1390579, at *3 (Minn. Ct. App. May 23, 2006) (unpublished)<br />
(appellant produced no specific information regarding treatment plans available); In re Yazzie,<br />
No. A05-750, 2005 WL 2130605, at *4 (Minn. Ct. App. Sept. 6, 2005) (unpublished) (citing no<br />
evidence that he had applied to program or that it would accept him); In re White, No. A05-231,<br />
2005 WL 1804919, at *5 (Minn. Ct. App. Aug. 2, 2005) (unpublished) (noting that patient<br />
produced no evidence concerning current appropriateness or availability <strong>of</strong> program); In re<br />
Jones, No. C2-01-1293, 2001 WL 1491248, at *3 (Minn. Ct. App. Nov. 27, 2001) (unpublished).<br />
387<br />
In re Bracken, No. A07-2271, 2008 WL 1973159, at *3 (Minn. Ct. App. May 6, 2008)<br />
(unpublished).<br />
388 Id.<br />
54
Where the proposed patient is serving a prison term <strong>and</strong> has sex <strong>of</strong>fender treatment<br />
available in prison, the court is not required to accept the prison placement as a less restrictive<br />
alternative obviating the need for commitment. 389<br />
The court does not have authority to revoke the person’s parole (supervised release) <strong>and</strong><br />
return him to prison to participate in treatment; authority to revoke parole lies solely with the<br />
Department <strong>of</strong> Corrections. 390 Where the person has been paroled <strong>and</strong> the parole has not been<br />
revoked, treatment in DOC is not an available less restrictive alternative. 391<br />
A pending federal deportation proceeding does not make commitment inappropriate. If<br />
the person meets the SPP or SDP requirements, the court “shall” commit the person. 392<br />
Under <strong>Commitment</strong> Rule 22, a “stay <strong>of</strong> commitment” is available as a resolution only<br />
with the agreement <strong>of</strong> both parties. 393 Where a court continues the case <strong>and</strong> reserves the right to<br />
review the person’s treatment progress, this is in effect a “stay <strong>of</strong> commitment,” which may not<br />
be done without the agreement <strong>of</strong> both parties. 394<br />
D. Treatability <strong>and</strong> Availability <strong>of</strong> Treatment; Self-Incrimination In Treatment.<br />
It is not necessary that the proposed patient be “treatable” in order to be committed. In<br />
upholding the constitutionality <strong>of</strong> PP commitment in In re Blodgett, 395 the supreme court said:<br />
It is next argued that a psychopathic personality condition is untreatable,<br />
<strong>and</strong>, therefore, confinement is equivalent to life-long preventive detention. But it<br />
is not clear that treatment for the psychopathic personality never works. It also<br />
seems somewhat incongruous that a sexual <strong>of</strong>fender should be able to prove he is<br />
untreatable by refusing treatment . . . .<br />
But even when treatment is problematic, <strong>and</strong> it <strong>of</strong>ten is, the state’s interest<br />
in the safety <strong>of</strong> others is no less legitimate <strong>and</strong> compelling. So long as civil<br />
389<br />
In re Johnson, No. A04-1361, 2005 WL 89862, at *6 (Minn. Ct. App. Jan. 18, 2005)<br />
(unpublished); In re Hopson, No. A06-976, 2006 WL 3199160, at *5 (Minn. Ct. App. Nov. 7,<br />
2006) (unpublished).<br />
390<br />
In re Cox, No. A08-0910, 2009 WL 113397, at *2 (Minn. Ct. App. Jan. 20, 2009), review<br />
denied (Minn. Mar. 31, 2009) (unpublished); In re Tolbert, No. A08-0395, 2008 WL 3898457, at<br />
*4 (Minn. Ct. App. Aug. 26, 2008) (unpublished).<br />
391<br />
Id.<br />
392<br />
In re Richards, 738 N.W.2d 397, 400 (Minn. Ct. App. 2007).<br />
393<br />
In re Eberhardt, No. A06-2044, 2007 WL 738719, at *4 (Minn. Ct. App. Mar. 13, 2007)<br />
(unpublished).<br />
394<br />
In re Tolbert, No. A08-0395, 2008 WL 3898457, at *5 (Minn. Ct. App. Aug. 26, 2008)<br />
(unpublished).<br />
395<br />
In re Blodgett, 510 N.W.2d 910 (Minn. 1994).<br />
55
commitment is programmed to provide treatment <strong>and</strong> periodic review, due<br />
process is provided. 396<br />
An appellant’s claim that the facility to which he is committed will not be able to provide<br />
him appropriate treatment is premature at the time <strong>of</strong> the commitment. 397 A person who is<br />
committed as SPP or SDP will have other avenues to challenge the validity <strong>of</strong> his treatment after<br />
he is committed <strong>and</strong> is participating in the treatment program. 398 But it is impermissible to<br />
challenge the constitutionality <strong>of</strong> the treatment one will receive by focusing on the treatment<br />
provided to others. 399 Where a proposed patient contended the state’s treatment program was a<br />
“sham,” but <strong>of</strong>fered evidence only regarding one patient <strong>of</strong> the program, the trial court did not<br />
abuse its discretion in determining that the evidence was irrelevant. 400<br />
The court <strong>of</strong> appeals has held that a challenge to the adequacy <strong>of</strong> treatment is also<br />
premature at the review hearing following the commitment facility’s 60-day report. 401<br />
Moreover, an initial psychological <strong>and</strong> social history assessment <strong>and</strong> the opportunity to<br />
participate in education <strong>and</strong> recreation therapy are adequate to meet any constitutional treatment<br />
requirement in the period between the initial commitment <strong>and</strong> the review hearing. 402<br />
The court <strong>of</strong> appeals has noted that a representative <strong>of</strong> the Minnesota Security Hospital<br />
has testified that persons with borderline intellectual functioning can be accommodated in the<br />
state’s treatment program. 403<br />
396 Id. at 916 (footnote <strong>and</strong> citation omitted); see also In re Fries, No. C5-96-1997, 1997 WL<br />
328022 (Minn. Ct. App. June 17, 1997) (unpublished). In Bailey v. Noot, 324 N.W.2d 164, 167<br />
(Minn. 1982), the supreme court said: “Adequate treatment is a constitutional right <strong>of</strong> a civilly<br />
committed mental patient.” This statement is apparently qualified by the statement from<br />
Blodgett, quoted in text. See also Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 2084<br />
(1997) (“we have never held that the Constitution prevents a State from civilly detaining those<br />
for whom no treatment is available, but who nevertheless pose danger to others”).<br />
397 In re Travis, 767 N.W.2d 52, 58 (Minn. Ct. App. 2009); In re Martenies, 350 N.W.2d 470,<br />
472 (Minn. Ct. App. 1984); In re Harrison, No. A07-1181, 2007 WL 4305377, at *7 (Minn. Ct.<br />
App. Dec. 11, 2007) (unpublished); In re Christiansen, No. A07-1290, 2007 WL 4305465, at *10<br />
(Minn. Ct. App. Dec. 11, 2007) (unpublished); In re Larson, No. C6-97-2215, 1998 WL 236167<br />
(Minn. Ct. App. May 12, 1998) (unpublished); see also In re Kennedy, 350 N.W.2d 484, 485<br />
(Minn. Ct. App. 1984) (mental illness commitment case); In re Wicks, 364 N.W.2d 844, 847<br />
(Minn. Ct. App. 1985) (mental retardation commitment case).<br />
398 In re Travis, 767 N.W.2d 52, 59-60 (Minn. Ct. App. 2009).<br />
399 Id. at 67.<br />
400 In re Hince, No. C1-97-95, 1997 WL 311662 (Minn. Ct. App. June 10, 1997) (unpublished).<br />
401 In re Barber, No. A04-2089, 2005 WL 758027, at *5 (Minn. Ct. App. Apr. 5, 2005)<br />
(unpublished).<br />
402 Id. at *6.<br />
403 In re Larson, No. C6-97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998)<br />
(unpublished).<br />
56
The lack <strong>of</strong> an age-specific treatment for young <strong>of</strong>fenders at the Minnesota Sex Offender<br />
Program does not preclude commitment to that program. 404 Treatment need only be adequate,<br />
not the “best possible.” 405<br />
Where a person has been committed <strong>and</strong> is at the state treatment program, an argument<br />
that treatment is inadequate or unavailable is not a basis to declare the commitment invalid (in a<br />
federal habeas proceeding), although the person may have other remedies to challenge the<br />
inadequacy <strong>of</strong> treatment. 406<br />
A district court’s finding that the state sex <strong>of</strong>fender treatment program is not actually a<br />
treatment program, but only a detention facility, is “nothing more than dicta” where the court<br />
does not articulate any legal conclusions or issue any relief based on the finding. 407<br />
A person committed as an SPP, but incarcerated in prison based on a decades-long<br />
criminal sentence, challenged his placement in a prison that did not provide sex <strong>of</strong>fender<br />
treatment, rather than a sex <strong>of</strong>fender treatment facility. The court <strong>of</strong> appeals held that the “right<br />
to treatment” issue would not be ripe until his release from prison was “relatively imminent.” 408<br />
A claim that the proposed patient did not have an adequate opportunity for treatment<br />
while in prison does not render the later commitment proceeding violative <strong>of</strong> due process. 409<br />
The court <strong>of</strong> appeals has ruled that the State’s Minnesota Sex Offender Program does not<br />
violate the Fifth Amendment’s privilege against self-incrimination by requiring participants<br />
to admit sex <strong>of</strong>fenses as part <strong>of</strong> their treatment, even if they are still within the perjury statute <strong>of</strong><br />
limitations. 410 The court held that, on the record in that case, neither the incrimination nor the<br />
compulsion element <strong>of</strong> self-incrimination was established. 411 A representative <strong>of</strong> the treatment<br />
program testified that MSOP patients could participate without disclosing identifying<br />
404 In re Black, No. A06-2262, 2007 WL 1470592, at *7 (Minn. Ct. App. May 22, 2007)<br />
(unpublished).<br />
405 Id.<br />
406 Martin v. Mooney, No. 06-1605 DSD/RLE, 2007 WL 1306409, at *20 (D. Minn. May 3,<br />
2007); see also Nicolaison v. Ludeman, No. 07-3224 RHK/JJG, 2008 WL 508549 (D. Minn.<br />
Feb. 21, 2008) (holding no clearly established federal right to treatment to enable release from<br />
commitment).<br />
407 In re Tolbert, No. A08-0395, 2008 WL 3898457, at *5 (Minn. Ct. App. Aug. 26, 2008)<br />
(unpublished).<br />
408 In re Thomas, No. C6-95-735, 1995 WL 465611 (Minn. Ct. App. Aug. 8, 1995)<br />
(unpublished).<br />
409 In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997) (unpublished).<br />
410 Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475 (Minn. Ct. App. July 1, 2008)<br />
(unpublished), review denied (Minn. Sept. 23, 2008).<br />
411 Id. at *2-3.<br />
57
information about victims. 412 And the court held that mere inability to progress in treatment due<br />
to failure to disclose did not constitute “compulsion” for purposes <strong>of</strong> the Fifth Amendment. 413<br />
IV. PROCEDURAL ISSUES.<br />
A. Department Of Corrections Referral.<br />
A commitment petition will not be dismissed merely because the Department <strong>of</strong><br />
Corrections (“DOC”) did not refer the case to the county attorney for possible commitment at<br />
least a year before the person’s prison release date, as required by Minn. Stat. § 244.05, subd. 7<br />
(2009). 414 The court <strong>of</strong> appeals has held that this provision is “directory,” not “m<strong>and</strong>atory,” <strong>and</strong><br />
that it is for the benefit <strong>of</strong> the county attorney, not the proposed patient. 415<br />
Minnesota’s Commissioner <strong>of</strong> Administration, who is authorized to issue opinions<br />
regarding the Data Practices Act, 416 has held that the fact that a person is considered for referral<br />
or actually referred by DOC is private data under the Data Practices Act. 417<br />
B. Criminal Procedures Not Applicable.<br />
The court <strong>of</strong> appeals has rejected arguments that SPP <strong>and</strong> SDP cases are criminal or<br />
quasi-criminal, so that criminal procedures must be used in such cases. 418 Specifically, the<br />
appellate court has determined that neither a jury trial 419 nor pro<strong>of</strong> beyond a reasonable doubt 420<br />
is required.<br />
412<br />
Id. at *2.<br />
413<br />
Id. at *3.<br />
414<br />
In re Chamberlain, No. C6-03-281, 2003 WL 21790534, at *7 (Minn. Ct. App. Aug. 5, 2003)<br />
(unpublished); In re Schultz, No. CX-99-1296, 1999 WL 1100941, at *2 (Minn. Ct. App. Nov.<br />
30, 1999) (unpublished).<br />
415<br />
In re Schultz, No. CX-99-1296, 1999 WL 1100941, at *2 (Minn. Ct. App. Nov. 30, 1999)<br />
(unpublished).<br />
416<br />
Minn. Stat. § 13.072 (2009).<br />
417<br />
Minn. Dep’t <strong>of</strong> Admin. Advis. Opin. 04-023,<br />
http://www.ipad.state.mn.us/opinions/2004/04023.html.<br />
418<br />
In re Daby, No. C4-98-246, 1998 WL 422232, at *4 (Minn. Ct. App. July 28, 1998)<br />
(unpublished) (rejecting quasi-criminal argument); In re Martinelli, No. C6-98-569, 1998 WL<br />
613845, at *5 (Minn. Ct. App. Sept. 15, 1998) (unpublished), rem<strong>and</strong>ed (Minn. Aug. 5, 1999),<br />
appeal after rem<strong>and</strong>, No. C4-00-748, 2000 WL 1285430 (Minn. Ct. App. Sept. 12, 2000)<br />
(unpublished), review denied (Minn. Oct. 26, 2000), vacated <strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 1160, 122<br />
S. Ct. 1171 (2002), aff’d after rem<strong>and</strong>, 649 N.W.2d 886 (Minn. Ct. App. 2002) (rejecting<br />
argument that, because court found that appellant committed acts for which he had never been<br />
criminally convicted, the findings constituted criminal convictions, necessitating criminal<br />
procedures).<br />
419<br />
Joelson v. O’Keefe, 594 N.W.2d 905, 911 (Minn. Ct. App. 1999); In re McEiver,<br />
No. A04-2002, 2005 WL 704298, at *2 (Minn. Ct. App. Mar. 29, 2005) (unpublished); In re<br />
Sargent, No. A04-1767, 2005 WL 406345, at *1-2 (Minn. Ct. App. Feb. 22, 2005) (unpublished).<br />
58
C. Petition.<br />
The person named as the commitment petitioner must have knowledge <strong>of</strong> the facts. 421<br />
However, the person’s knowledge need not be direct, but may be second h<strong>and</strong>, based on review<br />
<strong>of</strong> relevant records. 422<br />
The requirements <strong>of</strong> prepetition screening <strong>and</strong> that the petition be accompanied by an<br />
examiner’s statement, applicable to other types <strong>of</strong> commitments, 423 do not apply to SPP <strong>and</strong><br />
SDP commitments. 424 The reason for this is that, under Minn. Stat. § 253B.185, the county<br />
attorney is responsible to determine whether good cause exists for the petition. 425 The provisions<br />
<strong>of</strong> Minn. Stat. § 253B.07 (which contains the requirements for prepetition screening, specificity<br />
<strong>of</strong> the petition, <strong>and</strong> the examiner’s report) do not apply to an SPP or SDP case until after the<br />
petition has been brought. 426<br />
In a later case, however, the court <strong>of</strong> appeals rejected the argument that the petition was<br />
not sufficiently specific, <strong>and</strong> did not include an examiner’s report, on a different basis. 427 The<br />
court held that the proposed patient was not prejudiced because an examiner’s statement <strong>and</strong> the<br />
specific facts supporting the petition were subsequently provided during the commitment<br />
process, <strong>and</strong> the proposed patient had declined an <strong>of</strong>fer <strong>of</strong> additional time to review the<br />
examiner’s report. The court did not consider whether the requirements <strong>of</strong> section 253B.07<br />
concerning the contents <strong>of</strong> the petition <strong>and</strong> the examiner’s report applied to an SPP or SDP case<br />
before the filing <strong>of</strong> the petition. 428<br />
420<br />
In re Knutson, No. A05-1204, 2005 WL 3159930, at *8 (Minn. Ct. App. Nov. 29, 2005)<br />
(unpublished); In re Anderson, No. C8-98-976, 1998 WL 727734, at *4 (Minn. Ct. App. Oct. 20,<br />
1998) (unpublished).<br />
421<br />
Minn. Stat. § 253B.185, subd. 1 (2009).<br />
422<br />
In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)<br />
(unpublished); In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2,<br />
1998) (unpublished).<br />
423<br />
Minn. Stat. § 253B.07, subds. l, 2 (2009).<br />
424<br />
In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)<br />
(unpublished); In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2,<br />
1998) (unpublished); In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17,<br />
1997) (unpublished); In re Call, No. C9-93-501, 1993 WL 207824 (Minn. Ct. App. June 15,<br />
1993) (unpublished), aff’d (Minn. Feb. 4, 1994); In re Reeves, No. C5-91-1589, 1991 WL<br />
271528 (Minn. Ct. App. Dec. 24, 1991) (unpublished).<br />
425<br />
In re Reeves, No. C5-91-1589, 1991 WL 271528 (Minn. Ct. App. Dec. 24, 1991)<br />
(unpublished).<br />
426<br />
In re Call, No. C9-93-501, 1993 WL 207824, at *4 (Minn. Ct. App. June 15, 1993)<br />
(unpublished), aff’d (Minn. Feb. 4, 1994).<br />
427<br />
In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *2 (Minn. Ct. App. Dec. 15, 1999)<br />
(unpublished).<br />
428 Id.<br />
59
The lack <strong>of</strong> an examiner’s report does not deprive the proposed patient <strong>of</strong> his due process<br />
right to receive notice <strong>of</strong> the psychological basis for the commitment, where the “Exhibit A” to<br />
the petition provides him that information. 429<br />
Under certain circumstances, a petition may be dismissed without prejudice to<br />
bringing another petition. Where the court dismisses the petition for failure to hold a hearing<br />
within the period specified in Minn. Stat. § 253B.08, subd. 1, the dismissal is without prejudice,<br />
<strong>and</strong> the county may refile the petition relying on the same conduct that supported the previous<br />
petition. 430 And the court <strong>of</strong> appeals upheld the trial court’s refusal to dismiss the third petition<br />
that had been filed, where (1) the county attorney dismissed the first two petitions without<br />
prejudice, (2) each <strong>of</strong> the petitions named a different petitioner, (3) there were underst<strong>and</strong>able<br />
reasons for each <strong>of</strong> the dismissals, <strong>and</strong> (4) the proposed patient was being held under juvenile<br />
court jurisdiction <strong>and</strong> the third petition was filed more than 44 days before his scheduled release.<br />
While the court said that no abuse had occurred under these facts, it cautioned that successive<br />
petitions may not be filed with impunity. 431<br />
It is not improper for the county attorney to file the commitment petition shortly before<br />
the proposed patient’s release from prison, rather than earlier in the prison term. 432<br />
D. Parties To Proceeding.<br />
Unless one <strong>of</strong> them is the commitment petitioner, the proposed patient cannot require that<br />
the Commissioner <strong>of</strong> Human Services or the Commissioner <strong>of</strong> Corrections be joined as a party to<br />
the commitment proceeding, even if the proposed patient wants to address treatment at the<br />
commitment hearing. 433<br />
E. Jurisdiction <strong>and</strong> Venue.<br />
Under Minn. Stat. § 253B.185, subd. 1, an SDP or SPP commitment petition may be filed<br />
in “the county <strong>of</strong> financial responsibility or the county where the patient is present.” 434 If the<br />
patient is in the custody <strong>of</strong> the commissioner <strong>of</strong> corrections, the petition may be filed in the<br />
county where the conviction for which the person is incarcerated was entered.” 435 The phrase<br />
“county <strong>of</strong> financial responsibility” is determined under Minn. Stat. ch. 256G, which governs<br />
429<br />
In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997) (unpublished).<br />
430<br />
In re Giem, 742 N.W.2d 422, 433 (Minn. 2007).<br />
431<br />
In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)<br />
(unpublished).<br />
432<br />
In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997) (unpublished).<br />
433<br />
In re Thomas, No. C6-95-735, 1995 WL 465611 (Minn. Ct. App. Aug. 8, 1995)<br />
(unpublished).<br />
434<br />
Minn. Stat. § 253B.185, subd. 1, as amended by 2010 Minn. Laws ch. 357, § 9, effective<br />
Aug. 1, 2010. Before this amendment, the statute said the petition could be filed in “the county<br />
in which the patient has settlement or is present.” Minn. Stat. § 253B.185, subd. 1 (2009); In re<br />
Ivey, 687 N.W.2d 666, 670 (Minn. Ct. App. 2004).<br />
435<br />
Minn. Stat. § 253B.185, subd. 1, as amended by 2010 Minn. Laws ch. 357, § 9.<br />
60
financial responsibility for various human services programs. 436 Under Minn. Stat. § 256G.02,<br />
subds. 4(c) <strong>and</strong> 6, the “county <strong>of</strong> financial responsibility” is the last county in which the person<br />
lived outside an “excluded time” facility such as a jail, prison, treatment facility or halfway<br />
house. Where a person is in prison even outside Minnesota (<strong>and</strong> even outside the country), his<br />
last Minnesota county <strong>of</strong> residence outside an excluded time facility remains his county <strong>of</strong><br />
financial responsibility for purposes <strong>of</strong> venue <strong>of</strong> an SDP or SPP commitment case. 437 As<br />
between counties, the priority <strong>of</strong> responsibility for filing SPP <strong>and</strong> SDP petitions is specified in<br />
Minn. Stat. § 253B.23, subd. 1b(c). 438<br />
Moreover, Minnesota has personal jurisdiction over a person who was imprisoned<br />
outside Minnesota but was returned to Minnesota to serve remaining conditional release (i.e.,<br />
parole) time, even where the order imposing the additional parole time is later determined to be<br />
erroneous. Where the person has been returned to (<strong>and</strong> therefore is present in) Minnesota, this<br />
state has personal jurisdiction over him <strong>and</strong> it is immaterial that he was erroneously required to<br />
return here. 439<br />
Similarly, Minnesota was held to have personal jurisdiction for SPP/SDP purposes where<br />
the proposed patient was a member <strong>of</strong> the Red Lake B<strong>and</strong> <strong>of</strong> Chippewa Indians 440 <strong>and</strong> had been<br />
under federal juvenile placements outside Minnesota for an extended period, including when the<br />
commitment petition was brought, but the person had been placed by a county human services<br />
agency in Minnesota residential <strong>and</strong> treatment placements within the year before the<br />
commitment petition was filed. 441 The recent placement in the Minnesota programs constituted<br />
an adequate connection with the state for purposes <strong>of</strong> personal jurisdiction. 442<br />
Likewise, when a non-resident <strong>of</strong> Minnesota commits a crime here <strong>and</strong> is in a Minnesota<br />
prison, the state has personal jurisdiction over him for purposes <strong>of</strong> an SPP/SDP commitment<br />
even though he committed no sex crimes in this state. 443 Similarly, the state has personal<br />
jurisdiction over the respondent based on personally serving him here, even though his presence<br />
in Minnesota is involuntary, where he is serving a sentence in a Minnesota prison based on<br />
crimes committed here. 444<br />
436 Minn. Stat. § 253B.02, subd. 4c(a), as amended by 2010 Minn. Laws ch. 357, § 1, effective<br />
Aug. 1, 2010; for the law prior to Aug. 1, 2010, see In re Ivey, 687 N.W.2d 666, 670 (Minn. Ct.<br />
App. 2004).<br />
437 Id.<br />
438 As amended by 2010 Minn. Laws ch. 357, § 12, effective Aug. 1, 2010.<br />
439 Id. at 670-71.<br />
440 The Red Lake B<strong>and</strong> possesses a degree <strong>of</strong> sovereignty, separate from the state, that exceeds<br />
that <strong>of</strong> the other Indian b<strong>and</strong>s in Minnesota. In re John Beaulieu, 737 N.W.2d 231, 237-38<br />
(Minn. Ct. App. 2007).<br />
441 Id. at 235-37.<br />
442<br />
Id. at 235-36.<br />
443<br />
In re Kittrell, No. A05-2370, 2006 WL 1390579, at *2 (Minn. Ct. App. May 23, 2006)<br />
(unpublished).<br />
444<br />
In re Larson, No. A08-1486, 2009 WL 1049171 at *2-3 (Minn. Ct. App. Apr. 21, 2009)<br />
(unpublished).<br />
61
Despite the enhanced sovereignty <strong>of</strong> the Red Lake B<strong>and</strong> <strong>of</strong> Chippewa Indians, Minnesota<br />
nonetheless has subject matter jurisdiction to commit an enrolled member <strong>of</strong> that b<strong>and</strong> who<br />
has the requisite contacts with the state. 445 The state also has jurisdiction to commit reservationdomiciled<br />
members <strong>of</strong> other Minnesota Indian b<strong>and</strong>s. 446 The state clearly has jurisdiction to<br />
apply the civil commitment law to enrolled tribal members who reside outside a reservation. 447<br />
Both personal <strong>and</strong> subject matter jurisdiction are questions <strong>of</strong> law, reviewed de novo. 448<br />
A pending federal deportation proceeding does not deprive the court <strong>of</strong> jurisdiction to<br />
civilly commit the person as an SPP or SDP. 449<br />
The timelines for holding hearings specified in Minn. Stat. § 253B.08 are “m<strong>and</strong>atory,”<br />
but are not “jurisdictional.” 450 Consequently, those time limits may be waived. 451<br />
F. Dual DOC/DHS <strong>Commitment</strong>.<br />
The court <strong>of</strong> appeals has held that “dual commitment,” i.e., commitment <strong>of</strong> a person as an<br />
SPP while the person has a substantial amount <strong>of</strong> his prison sentence remaining, is<br />
permissible. 452 In such a case, the prison term <strong>and</strong> the availability <strong>of</strong> sex <strong>of</strong>fender treatment in<br />
prison does not serve as a “less restrictive alternative” obviating the need for commitment. 453<br />
G. Prehearing Issues.<br />
Prehearing conferences under Minn. R. Civ. P. 16 are available in civil commitment<br />
cases. Because the commitment rules do not address them, the Rules <strong>of</strong> <strong>Civil</strong> Procedure<br />
apply. 454<br />
445<br />
In re John Beaulieu, 737 N.W.2d 231, 237-41 (Minn. Ct. App. 2007).<br />
446<br />
In re Giishig, No. A07-0616, 2007 WL 2601423, at *12-13 (Minn. Ct. App. Sept. 11, 2007)<br />
(unpublished).<br />
447<br />
Wallace Beaulieu v. Minnesota, Nos. 06-CV-4045, 06-DV-4764, 2008 WL 4104701 (D.<br />
Minn. Aug. 28, 2008) (unpublished) (applying predatory <strong>of</strong>fender registration law).<br />
448<br />
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *4 (Minn. Ct. App. Aug. 5, 2008),<br />
review denied (Minn. Oct. 21, 2008) (unpublished).<br />
449<br />
In re Richards, 738 N.W.2d 397, 399-400 (Minn. Ct. App. 2007).<br />
450<br />
In re Giem, 742 N.W.2d 422, 428-29 (Minn. 2007).<br />
451<br />
Id. at 431.<br />
452<br />
In re Martenies, 350 N.W.2d 470, 472-73 (Minn. Ct. App. 1984); In re Duvall, No. C5-91-<br />
1799, 1991 WL 276194 (Minn. Ct. App. Dec. 31, 1991) (unpublished).<br />
453<br />
In re Johnson, No. A04-1361, 2005 WL 89862, at *6 (Minn. Ct. App. Jan. 18, 2005)<br />
(unpublished).<br />
454<br />
In re Irwin, 529 N.W.2d 366, 370 (Minn. Ct. App. 1995).<br />
62
A party should have a reasonable opportunity to prepare a case. At least where the<br />
proposed patient requests it, continuances should be liberally granted. 455 The court’s refusal to<br />
grant a continuance is reviewed for “clear abuse <strong>of</strong> discretion.” 456 In addition, the person must<br />
show that he was prejudiced by the denial <strong>of</strong> the continuance. 457 The court does not abuse its<br />
discretion by denying the patient’s requested continuance to obtain a different attorney where the<br />
patient repeatedly makes the request but fails to act diligently in obtaining a different attorney. 458<br />
Changes <strong>of</strong> venue are within the discretion <strong>of</strong> the trial court. Since concerns about<br />
prejudice from publicity usually arise in jury cases, a trial court did not abuse its discretion in an<br />
SPP/SDP case when it denied a request for change <strong>of</strong> venue. 459 The fact that the respondent<br />
disagrees with the trial judge’s pretrial rulings does not provide a basis to show that the judge is<br />
biased <strong>and</strong> therefore may be removed after the deadline for removal as <strong>of</strong> right. 460<br />
The proposed patient has the right to be present at the commitment hearing, unless the<br />
court finds that the proposed patient has freely waived it. 461 However, there is no specific<br />
requirement that a proposed patient be present at a pretrial deposition, at least where the<br />
proposed patient’s attorney attended <strong>and</strong> fully presented his objections. 462 Former <strong>Commitment</strong><br />
Rule 10.01, 463 which accorded the proposed patient the right to be present at all hearings in the<br />
case, 464 was omitted in the January 2000 overhaul <strong>of</strong> the rules. Currently the only reference in<br />
rule or statute to the proposed patient’s right to be present is the right to attend the commitment<br />
hearing under Minn. Stat. § 253B.08, subds. 3, 5 (2009).<br />
Where the respondent fails to raise defenses to the commitment petition, such as<br />
constitutional arguments, until after the commitment hearing <strong>and</strong> decision, he waives those<br />
455<br />
Id. at 371.<br />
456<br />
In re Hatton, No. A08-0648, 2008 WL 4301816, at *3 (Minn. Ct. App. Sept. 23, 2008),<br />
review denied (Minn. Dec. 16, 2008) (unpublished); In re Brinkman, No. A08-1077, 2008 WL<br />
5058637, at *9 (Minn. Ct. App. Dec. 2, 2008) (unpublished); In re Cox, No. A08-0910, 2009<br />
WL 113397, at *2 (Minn. Ct. App. Jan. 20, 2009), review denied (Minn. Mar. 31, 2009)<br />
(unpublished).<br />
457<br />
In re Hatton, No. A08-0648, 2008 WL 4301816, at *3 (Minn. Ct. App. Sept. 23, 2008),<br />
review denied (Minn. Dec. 16, 2008) (unpublished); In re Cox, No. A08-0910, 2009 WL 113397,<br />
at *2 (Minn. Ct. App. Jan. 20, 2009), review denied (Minn. Mar. 31, 2009) (unpublished).<br />
458<br />
In re Hatton, No. A08-0648, 2008 WL 4301816, at *3-4 (Minn. Ct. App. Sept. 23, 2008),<br />
review denied (Minn. Dec. 16, 2008) (unpublished); In re Brinkman, No. A08-1077, 2008 WL<br />
5058637, at *9 (Minn. Ct. App. Dec. 2, 2008) (unpublished).<br />
459<br />
In re Swan, No. CX-97-2041, 1998 WL 217190 (Minn. Ct. App. May 5, 1998) (unpublished).<br />
460<br />
In re Cox, No. A08-0910, 2009 WL 113397, at *5 (Minn. Ct. App. Jan. 20, 2009), review<br />
denied (Minn. Mar. 31, 2009) (unpublished).<br />
461<br />
Minn. Stat. § 253B.08, subd. 5 (2009).<br />
462<br />
Irwin, 529 N.W.2d at 372.<br />
463<br />
See Minn. R. Civ. Commit. 10.01 in Minn. Stat. (1998).<br />
464<br />
Irwin, 529 N.W.2d at 372.<br />
63
defenses. 465 Indeed, the court <strong>of</strong> appeals has held in an unpublished decision that, under Minn.<br />
R. Civ. P. 12, the commitment respondent must raise any defenses to the commitment petition,<br />
including arguments that the commitment is unconstitutional, within 20 days after service <strong>of</strong> the<br />
commitment petition or those defenses are waived. 466 The court <strong>of</strong> appeals has suggested (but<br />
not held) that the trial court may deny a motion to dismiss as part <strong>of</strong> the commitment order<br />
without including a statement <strong>of</strong> reasons for denying the motion. 467<br />
H. Privilege Against Self-Incrimination.<br />
Because SPP <strong>and</strong> SDP commitments are not criminal or punitive, the privilege against<br />
self-incrimination does not generally apply to such proceedings, <strong>and</strong> the proposed patient can be<br />
required to testify against himself, even though the result may be commitment. 468<br />
However, as in other civil proceedings, a proposed patient may invoke the privilege<br />
against self-incrimination on a question-by-question basis if the answers may incriminate the<br />
proposed patient with respect to pending or possible criminal charges. 469<br />
I. Pretrial Hold Orders.<br />
The committing court may issue an order that the proposed patient be held in a treatment<br />
facility pending a decision on the commitment petition, if the petitioner shows that serious<br />
physical harm to the proposed patient or others is likely if the proposed patient is not<br />
immediately confined. 470 Under the statute, the proposed patient may not be held in a treatment<br />
facility pursuant to such an order for more than 72 hours (exclusive <strong>of</strong> weekends <strong>and</strong> holidays)<br />
unless the court holds a preliminary hearing.<br />
465<br />
In re Lunsford, No. A09-0335, 2009 WL 2747761, at *2 (Minn. Ct. App. Sept. 1, 2009)<br />
(unpublished).<br />
466<br />
Id.<br />
467<br />
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *7 (Minn. Ct. App. Aug. 5, 2008)<br />
(unpublished), review denied (Minn. Oct. 21, 2008).<br />
468<br />
Allen v. Illinois, 478 U.S. 364, 106 S. Ct. 2988 (1986); In re Leas, No. A06-1234, 2006 WL<br />
3071404, at *3 (Minn. Ct. App. Oct. 31, 2006) (unpublished); In re Woodruff, No. C6-98-118,<br />
1998 WL 345478 (Minn. Ct. App. June 30, 1998) (unpublished); see also In re Bobo, 376<br />
N.W.2d 429, 433-34 (Minn. Ct. App. 1984) (in mentally ill <strong>and</strong> dangerous commitment, holding<br />
privilege against self-incrimination inapplicable to civil commitment).<br />
469<br />
In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)<br />
(unpublished); see also In re E.D.F., No. C0-95-1556, 1995 WL 747943 (Minn. Ct. App. Dec.<br />
19, 1995) (unpublished); Minnesota State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 248 N.<br />
W.2d 733 (Minn. 1976); In re Bobo, 376 N.W.2d 429, 433-34 (Minn. Ct. App. 1984)<br />
(considering mentally ill <strong>and</strong> dangerous commitment).<br />
470<br />
Minn. Stat. § 253B.07, subds. 2b <strong>and</strong> 7 (2009). Prior to 2001 <strong>and</strong> 2002 statutory<br />
amendments, the statute provided that the court must find that “serious imminent physical harm<br />
to the proposed patient or others is likely if the proposed patient is not confined.” The<br />
amendments deleted the word “imminent” <strong>and</strong> added the word “immediately.” 2001 Minn.<br />
Laws, 1st Spec. Sess., ch. 9, art. 9, § 34; 2002 Minn. Laws ch. 335, § 2.<br />
64
At the preliminary hold order hearing, the court may consider reliable hearsay evidence,<br />
including written materials. 471 Because commitment proceedings are civil, use <strong>of</strong> hearsay<br />
evidence at the preliminary hold order hearing does not violate the constitutional Confrontation<br />
Clause, which applies only in criminal cases. 472<br />
Section 253B.07, subd. 7(b) provides that the proposed patient must receive at least 24<br />
hours notice <strong>of</strong> the preliminary hearing. Holding the hearing with only the minimum 24 hours<br />
notice to the proposed patient does not violate due process. 473<br />
The trial court may not deny a hold order on the ground that the petition was brought<br />
only shortly before the proposed patient’s scheduled release from prison. 474<br />
Prior to 1997 amendments, the statute required that the court determine at the hold order<br />
hearing that “probable cause exists to continue to hold the person.” 475 However consistent with<br />
other language in the statute <strong>and</strong> its legislative history, the court <strong>of</strong> appeals held that the<br />
petitioner needed to show only likelihood <strong>of</strong> imminent harm at the hold order hearing, <strong>and</strong> not<br />
probable cause that all <strong>of</strong> the commitment requirements were satisfied. 476 The purpose <strong>of</strong> the<br />
hearing was only to determine whether the hold order would be issued, not whether the case<br />
could go forward. 477 In 1997, the statute was amended to clarify the limited showing the<br />
petitioner must make to obtain the court hold order. 478<br />
Few cases have examined the adequacy <strong>of</strong> evidence to support the issuance <strong>of</strong> a pre-trial<br />
hold order. However, in one case the appellate court held that the “likelihood <strong>of</strong> serious physical<br />
harm st<strong>and</strong>ard” was met based upon findings <strong>of</strong> the proposed patient’s<br />
multiple physical acts <strong>of</strong> digital penetration <strong>and</strong> fondling <strong>of</strong> children, use <strong>of</strong> force<br />
<strong>and</strong> manipulation on victims, <strong>and</strong> the consequent embarrassment <strong>and</strong> humiliation<br />
<strong>of</strong> the victims. There is no requirement that petitioner establish that the victims<br />
experienced severe pain at the time <strong>of</strong> the act. See In re Knops, 536 N.W.2d 616,<br />
620-21 (Minn.1995) (determining that digital penetration which caused removal<br />
<strong>of</strong> hymenal tissue constitutes serious physical injury). The physical harm inflicted<br />
471<br />
Minn. Stat. § 253B.07, subd. 7(b) (2009).<br />
472<br />
In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)<br />
(unpublished).<br />
473<br />
In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997) (unpublished);<br />
see also In re Anderson, No. c9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)<br />
(unpublished) (where proposed patient received more than five days notice <strong>of</strong> hearing, claim <strong>of</strong><br />
inadequate notice was rejected).<br />
474<br />
In re Anderson, No. C5-96-2583 (Minn. Ct. App. Dec. 12, 1996) (order opinion).<br />
475<br />
Minn. Stat. § 253B.07, subd. 7(a) (1996).<br />
476<br />
Ayers, 570 N.W.2d at 24; In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App.<br />
June 17, 1997) (unpublished).<br />
477<br />
Ayers, 570 N.W.2d at 24.<br />
478<br />
Minn. Stat. § 253B.07, subd. 7 (2009); Ayers, 570 N.W.2d at 23 n.2.<br />
65
y Daniels is a combination <strong>of</strong> his manipulation <strong>and</strong> force used on particularly<br />
vulnerable victims, the multiplicity <strong>of</strong> his assaults upon certain victims, <strong>and</strong> his<br />
status <strong>of</strong> a trusted <strong>and</strong> authoritative person. While the actual harm to some <strong>of</strong> the<br />
young victims might not yet be fully realized, one victim’s testimony at trial<br />
expressed the level <strong>of</strong> lasting insecurities <strong>and</strong> fears that also constitute serious<br />
harm. See In re Preston, 629 N.W.2d 104, 112 (Minn. App. 2001) (determining<br />
that serious psychological harm is sufficient to meet the violence requirement); In<br />
re Robb, 622 N.W.2d 564, 572 (Minn. App. 2001) (determining that serious harm<br />
results from acts that are “highly likely to have a serious, lasting effect on the<br />
victim’s sense <strong>of</strong> security <strong>and</strong> to cause a continuing sense <strong>of</strong> fear”), review denied<br />
(Minn. Apr. 17, 2001). Therefore, the court’s hold order was based on sufficient<br />
evidence <strong>of</strong> the likelihood <strong>of</strong> serious physical harm resulting from a release. 479<br />
Following the commitment <strong>of</strong> the person, an appeal from the issuance <strong>of</strong> a hold order is<br />
moot where it is based on the facts <strong>of</strong> his case rather than a broader issue. 480<br />
J. Discovery; Obtaining And Using Records.<br />
Discovery under the Rules <strong>of</strong> <strong>Civil</strong> Procedure is available in commitment cases. 481<br />
With notice to the proposed patient, the county attorney may obtain the person’s records<br />
from the state Department <strong>of</strong> Corrections (“DOC”) <strong>and</strong> probation <strong>and</strong> parole agencies to<br />
determine whether to file a commitment petition <strong>and</strong> for use in an SPP/SDP commitment<br />
proceeding, <strong>and</strong> no court order or discovery request is required. 482<br />
The commitment act allows the county attorney to move the court to obtain access to any<br />
other relevant records concerning the proposed patient to determine whether to file a<br />
commitment petition <strong>and</strong> to support the petition at trial. 483 The proposed patient must receive<br />
notice <strong>of</strong> the motion. 484 This provision applies, notwithst<strong>and</strong>ing various laws, including the Data<br />
Practices Act, applicable privileges, or the juvenile court laws. 485<br />
479<br />
In re Daniels, No. A03-623, 2003 WL 22707418, at *4 (Minn. Ct. App. Nov. 18, 2003)<br />
(unpublished).<br />
480<br />
In re Christenson, No. A07-680, 2007 WL 2367627, at *7-8 (Minn. Ct. App. Aug. 21, 2007)<br />
(unpublished); In re Daniels, No. A03-623, 2003 WL 22707418, at *4 (Minn. Ct. App. Nov. 18,<br />
2003) (unpublished) (holding challenge to pre-trial hold order moot, but addressing it anyway); .<br />
481<br />
Irwin, 529 N.W.2d at 370.<br />
482<br />
Minn. Stat. § 253B.185, subd. 1b (2009). Before the enactment <strong>of</strong> 2008 Minn. Laws, ch. 326,<br />
art. 2, § 10, this authority existed only for DOC records, <strong>and</strong> only if DOC had referred the case to<br />
the county attorney. Minn. Stat. § 244.05, subd. 7 (2007)<br />
483<br />
Minn. Stat. § 253B.185, subd. 1b (2009).<br />
484<br />
Id.<br />
485<br />
Id.; In re Jones, No. C2-01-1293, 2001 WL 1491248, at *2 (Minn. Ct. App. Nov. 27, 2001)<br />
(unpublished) (statute overrides privileges <strong>and</strong> data practices “Tennessen warning”<br />
requirements); In re Bartholomay, No. C6-01-1104, 2001 WL 1645818, at *6-7 (Minn. Ct. App.<br />
Dec. 26, 2001) (unpublished) (privileges).<br />
66
The records access law allows the court to grant the county attorney’s motion for access<br />
to records whenever either the Department <strong>of</strong> Corrections has made a referral for civil<br />
commitment or the petitioner shows that the records may be relevant to the commitment<br />
determination. However, in In re Bartholomay, 486 the court <strong>of</strong> appeals rejected a constitutional<br />
challenge to the records access statute “as applied” to Bartholomay. Bartholomay had been<br />
referred for possible civil commitment by the Department <strong>of</strong> Corrections, so the court <strong>of</strong> appeals<br />
considered the constitutionality <strong>of</strong> the act only as applied to a person who had been referred. The<br />
appellate court gave two slightly varying explanations <strong>of</strong> why the law was constitutional as<br />
applied to Bartholomay:<br />
Because Minn. Stat. § 244.05, subd. 7, requires the DOC to conduct a<br />
referral assessment <strong>and</strong> such requirement applies only to inmates convicted <strong>of</strong><br />
criminal sexual conduct or patterned sex-<strong>of</strong>fender crimes, we find that Minn. Stat.<br />
§ 253B.185, subd. 1b, which is based upon the DOC referral in Minn. Stat.<br />
§ 244.05, subd. 7, is sufficiently narrowly tailored to withst<strong>and</strong> constitutional<br />
attack.<br />
. . . . Because we find substantial support in the DOC referral letter <strong>and</strong><br />
assessment report for the referral <strong>of</strong> appellant as a possible c<strong>and</strong>idate for<br />
commitment as an SDP, we conclude that Minn. Stat. § 253B.185, subd. 1b,<br />
withst<strong>and</strong>s constitutional scrutiny as applied to appellant. 487<br />
While the first quoted paragraph suggests that a DOC referral alone is enough to render the<br />
application <strong>of</strong> the statute constitutional, the second paragraph suggests that the court must<br />
determine that there is “substantial support in the DOC referral letter <strong>and</strong> assessment report for<br />
the referral <strong>of</strong> appellant as a possible c<strong>and</strong>idate for commitment.” Thus, the safer course for a<br />
county attorney <strong>and</strong> a court considering a motion for access to records is to weigh whether there<br />
are sufficient grounds shown to consider the person for possible commitment. This might be<br />
described as an investigative probable cause st<strong>and</strong>ard: Are there reasonable grounds for the<br />
county attorney to be investigating possible civil commitment? Likewise, it would be most<br />
prudent to apply the same st<strong>and</strong>ard when seeking access to records where there has not been a<br />
DOC referral, <strong>and</strong> it would seem that the application <strong>of</strong> such a st<strong>and</strong>ard should render the statute<br />
constitutional under the reasoning <strong>of</strong> Bartholomay.<br />
The court <strong>of</strong> appeals in Bartholomay held that the procedures for obtaining patient<br />
medical records outlined in a previous supreme court decision, In re D.M.C., 488 do not apply to<br />
the SPP/SDP records-access provision, because the SPP/SDP statute specifies its own<br />
procedures. 489<br />
486<br />
In re Bartholomay, No. C6-01-1104, 2001 WL 1645818 (Minn. Ct. App. Dec. 26, 2001)<br />
(unpublished).<br />
487<br />
Id. at *5.<br />
488<br />
In re D.M.C., 331 N.W.2d 236 (Minn. 1983).<br />
489<br />
In re Bartholomay, No. C6-01-1104, 2001 WL 1645818, at *6 (Minn. Ct. App. Dec. 26,<br />
2001) (unpublished)<br />
67
In a later case, In re Fugelseth, 490 the court <strong>of</strong> appeals again upheld the constitutionality<br />
<strong>of</strong> the records-access provision, this time against a claim that it violated substantive due process<br />
to provide the county attorney <strong>and</strong> court access to disclosures he was required to make to<br />
successfully participate in prison sex <strong>of</strong>fender treatment.<br />
Even before the 2000 enactment <strong>of</strong> the records access law, the court <strong>of</strong> appeals held that<br />
treatment <strong>and</strong> juvenile records may be used in a commitment proceeding, where the petitioner<br />
obtains them pursuant to court order <strong>and</strong> the proposed patient has notice <strong>of</strong> the order. 491 Under<br />
juvenile court rules, the commitment petitioner has “a legitimate interest in the child,” <strong>and</strong><br />
therefore may obtain the records pursuant to court order. 492<br />
Where treatment <strong>and</strong> juvenile records are obtained pursuant to court order, the Data<br />
Practices Act does not prevent their use as evidence at hearing. 493<br />
The court <strong>of</strong> appeals has considered an argument by a proposed patient that psychological<br />
assessments <strong>and</strong> pre-sentence reports should not be admitted in his commitment case, absent a<br />
specific “Tennessen warning” under the Data Practices Act. 494 The court held that the fact that<br />
the Tennessen warning may not have been provided when the data was collected does not make<br />
the data inadmissible in a later judicial proceeding. 495<br />
The court <strong>of</strong> appeals had previously considered whether testimony <strong>and</strong> records <strong>of</strong> a<br />
proposed patient’s prison psychologist could be used against him in a commitment case, in light<br />
<strong>of</strong> the proposed patient’s assertion that he had not been provided a Tennessen warning. The<br />
court said: “We share appellant’s concern about the gathering <strong>and</strong> use <strong>of</strong> information <strong>and</strong> agree<br />
that those in the system should be given the Tennessen warning when appropriate.” 496 But the<br />
court held that the trial court did not abuse its discretion in admitting the records <strong>and</strong> testimony<br />
where (1) the proposed patient signed a Tennessen warning earlier in his prison term, (2) he was<br />
not asked for the information, but instead sought therapy <strong>and</strong> (3) the psychologist testified that<br />
she had several conversations with the proposed patient about the limited confidentiality <strong>of</strong> their<br />
meetings <strong>and</strong> the possibility that commitment would be sought. 497<br />
490 In re Fugelseth, No. A03-1330, 2004 WL 422695, at *6-7 (Minn. Ct. App. Mar. 9, 2004)<br />
(unpublished)<br />
491 In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)<br />
(unpublished).<br />
492 Minn. R. Juv. Del. P. 30.02. subd. 3(A)(3); In re Anderson, No. C9-97-2225, 1998 WL<br />
281914 (Minn. Ct. App. June 2, 1998) (unpublished).<br />
493 In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)<br />
(unpublished).<br />
494 Minn. Stat. § 13.04, subd. 2 (2009).<br />
495 In re Robb, 622 N.W.2d 564, 575 (Minn. Ct. App. 2001).<br />
496 In re Larson, No. C6-97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998)<br />
(unpublished).<br />
497 Id.<br />
68
As noted above, the 2000 statute, Minn. Stat. § 253B.185, subd. 1b, provides that records<br />
may be obtained <strong>and</strong> used in the case, pursuant to court order, notwithst<strong>and</strong>ing “any provision<br />
<strong>of</strong>” the Data Practices Act. 498 This provision would appear to make it clear that government<br />
records may be used in an SPP/SDP commitment case, even if a Tennessen warning was not<br />
given.<br />
The commitment rules provide that the county attorney, the proposed patient <strong>and</strong> his<br />
attorney <strong>and</strong> the court-appointed examiner shall have access to all <strong>of</strong> the proposed patient’s<br />
medical records. 499 In addition, the court <strong>of</strong> appeals has held that the trial court properly allowed<br />
the examiners to have access to all <strong>of</strong> the records gathered pursuant to the county attorney’s<br />
pretrial record motion, noting that the “Minnesota Supreme Court has ‘stressed the value <strong>of</strong><br />
permitting court-appointed examiners * * * full access to all available information.’” 500<br />
The trial court does not err in preventing the commitment respondent himself from<br />
having access to confidential records regarding an alleged victim or ongoing investigations<br />
where his attorney is provided access to the records. 501<br />
Where the petitioner has lawfully obtained the proposed patient’s records, petitioner may<br />
share those records with petitioner’s expert witness, although the expert witness must then<br />
maintain the non-public nature <strong>of</strong> the records. 502<br />
K. Independent Medical Examinations <strong>of</strong> Victims.<br />
The commitment respondent is not entitled to obtain independent medical examinations<br />
<strong>of</strong> any victims under Minn. R. Civ. P. 35.01 (assuming that the victim is not the petitioner),<br />
because that provision applies only to parties to the case. 503<br />
L. Examiners <strong>and</strong> Expert Witnesses.<br />
The <strong>Commitment</strong> Act provides that the court will select <strong>and</strong> appoint an examiner to<br />
examine the patient <strong>and</strong> advise the court <strong>and</strong>, upon the request <strong>of</strong> the proposed patient, must<br />
appoint a second examiner selected by the proposed patient. 504 The respondent’s attorney must<br />
consult with the respondent regarding whether to request a second examiner <strong>and</strong> which examiner<br />
498<br />
Minn. Stat. § 253B.185, subd. 1b (2009).<br />
499<br />
Minn. R. Civ. Commit. 13.<br />
500<br />
In re Jones, No. C2-01-1293, 2001 WL 1491248, at *2 (Minn. Ct. App. Nov. 27,<br />
2001) (unpublished) (omission in original); see also In re White, No. A05-231, 2005 WL<br />
1804919, at *5 (Minn. Ct. App. Aug. 2, 2005) (unpublished); In re D.M.C., 331 N.W.2d<br />
236, 238 (Minn. 1983) (mental illness commitment).<br />
501<br />
In re Brinkman, No. A08-1077, 2008 WL 5058637, at *9 (Minn. Ct. App. Dec. 2, 2008)<br />
(unpublished).<br />
502<br />
In re Buckhalton, 503 N.W.2d 148, 152 (Minn. Ct. App. 1993); In re Anderson, No. C9-97-<br />
2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998) (unpublished).<br />
503<br />
In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn. Ct. App. Jan. 9, 2001) (unpublished).<br />
504 Minn. Stat. § 253B.07, subd. 3 (2009)<br />
69
to select. 505 Where the trial court had appointed a second court examiner at the proposed<br />
patient’s request, it did not err in refusing to appoint another expert to consult with the proposed<br />
patient’s attorney. 506 This is true even where the county had retained a private expert. 507<br />
Moreover, there is nothing in the statute that prevents the court from appointing a third examiner<br />
selected by the county, if the court chooses to do so. 508<br />
The district court may deny the patient’s request for an examiner for the review hearing<br />
provided by Minn. Stat. § 253B.18, subd. 2. 509 This is true even though the commitment rules<br />
allow the patient to have the court appoint an examiner <strong>of</strong> the patient’s choice for the review<br />
hearing. 510 Apparently this means that the court need not allow the patient to choose a different<br />
examiner than the one selected by the patient for the initial hearing.<br />
The court <strong>of</strong> appeals cautioned that a proposed patient should not benefit from refusing<br />
to be interviewed by the petitioner’s retained expert. Nonetheless, deferring to the trial court’s<br />
discretion in weighing expert testimony, the appellate court found no error in the trial court’s<br />
decision not to commit the person. 511<br />
The petitioner’s expert may provide an opinion regarding the proposed patient based<br />
simply on a review <strong>of</strong> records, without an interview. 512 Likewise, a psychologist from the state<br />
treatment program was properly allowed to testify, even though she had not interviewed the<br />
patient, where the patient refused to talk with the psychologist. 513<br />
505 In re Cox, No. A08-0910, 2009 WL 113397, at *4 (Minn. Ct. App. Jan. 20, 2009), review<br />
denied (Minn. Mar. 31, 2009) (unpublished)<br />
506 In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn. Ct. App. Jan. 9, 2001) (unpublished).<br />
507 In re Prather, No. C8-98-847, 1998 WL 887539, at *2 (Minn. Ct. App. Dec. 22, 1998)<br />
(unpublished), review denied (Minn. 1999), appeal after rem<strong>and</strong>, No. C0-00-987, 2000 WL<br />
1778321 (Minn. Ct. App. Nov. 21, 2000) (unpublished); In re Crocker, No. C0-95-2500, 1996<br />
WL 192974 (Minn. Ct. App. Apr. 23, 1996) (unpublished), aff’d (Minn. Jan. 21, 1997).<br />
508 In re Williams, 735 N.W.2d 727, 734 (Minn. Ct. App. 2007).<br />
509 In re Hatton, No. A08-0648, 2008 WL 4301816, at *4 (Minn. Ct. App. Sept. 23, 2008)<br />
(unpublished); In re Anderson, No. C8-98-976, 1998 WL 727734, at *3 (Minn. Ct. App. Oct. 20,<br />
1998) (unpublished).<br />
510 Minn. R. Civ. Commit. 23(c) (2006). At the time <strong>of</strong> the Anderson decision cited in the<br />
previous note, an earlier version <strong>of</strong> the rule contained an identical provision. See Minn. R. Civ.<br />
Commit. 12.03 (1998).<br />
511 In re Wallace Beaulieu, No. C3-96-1366, 1997 WL 292316 (Minn. Ct. App. June 3, 1997)<br />
(unpublished).<br />
512 In re Fageroos, No. A06-1947, 2007 WL 509748, at *3 (Minn. Ct. App. Feb. 20, 2007)<br />
(unpublished).<br />
513 In re Woodruff, No. C2-99-689, 1999 WL 760011, at *1-2 (Minn. Ct. App. Sept. 28, 1999)<br />
(unpublished).<br />
70
The statutory deadline for submission <strong>of</strong> the examiner’s reports contained in Minn.<br />
Stat. § 253B.07, subd. 5, does not apply to an expert retained by the petitioner who is not a courtappointed<br />
examiner. 514<br />
An examiner may base her opinion in part on hearing the testimony <strong>of</strong> the proposed<br />
patient <strong>and</strong> others at the commitment hearing. 515 The trial court did not abuse its discretion in<br />
allowing the petitioner’s expert to listen to the testimony <strong>of</strong> the court-appointed examiner <strong>and</strong><br />
then testify afterwards, <strong>and</strong> in not allowing (i.e., paying) the court-appointed examiner to attend<br />
the entire hearing, where the court indicated it would consider those circumstances when<br />
weighing the two experts’ testimony. 516<br />
The court <strong>of</strong> appeals has recognized the value <strong>of</strong> permitting court-appointed examiners<br />
full access to all available information. 517 The court affirmed the trial court’s decision to provide<br />
the appellant’s records to the examiners where they were relevant to the commitment criteria<br />
<strong>and</strong> were the type <strong>of</strong> records normally relied upon by examiners in such cases. 518 The court has<br />
held that transcripts <strong>of</strong> testimony from previous criminal trials were properly provided to the<br />
examiners, because “[a]ny evidence regarding [appellant’s] previous sexual conduct would<br />
clearly be relevant to experts in making a proper evaluation <strong>of</strong> appellant.” 519<br />
The mode, manner, <strong>and</strong> method <strong>of</strong> receiving testimony rest within the district court’s<br />
sound discretion. 520 Under this principle, the trial court may allow an expert to critique another<br />
expert’s interviewing technique, but may prohibit an expert’s testimony that misstates the<br />
testimony <strong>of</strong> another expert. 521<br />
The determination <strong>of</strong> whether a person qualifies as an expert is almost entirely within<br />
the trial court’s discretion. 522 Likewise, determining the foundation required for expert<br />
testimony is within the discretion <strong>of</strong> the trial court. 523<br />
514 In re Fageroos, No. A06-1947, 2007 WL 509748, at *5 (Minn. Ct. App. Feb. 20, 2007)<br />
(unpublished).<br />
515 Id. at *4.<br />
516 In re Lindberg, No. CX-97-855, 1997 WL 600584 (Minn. Ct. App. Sept. 30, 1997).<br />
517 In re White, No. A05-231, 2005 WL 1804919, at *5 (Minn. Ct. App. Aug. 2, 2005)<br />
(unpublished).<br />
518 Id.<br />
519 In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008),<br />
review denied (Minn. Oct. 21, 2008) (unpublished).<br />
520 In re Fisher, No. A05-579, 2005 WL 2209079, at 11 (Minn. Ct. App. Sept. 13, 2005)<br />
(unpublished).<br />
521 Id.<br />
522 In re Martinelli, No. C6-98-569, 1998 WL 613845, at *6 (Minn. Ct. App. Sept. 15, 1998)<br />
(unpublished), rem<strong>and</strong>ed (Minn. Aug. 5, 1999), appeal after rem<strong>and</strong>, No. C4-00-748, 2000 WL<br />
1285430 (Minn. Ct. App. Sept. 12, 2000) (unpublished), review denied (Minn. 2000), vacated<br />
<strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 1160, 122 S. Ct. 1171 (2002), aff’d after rem<strong>and</strong>, 649 N.W.2d 886<br />
(Minn. Ct. App. 2002).<br />
71
The trial court, not the examiners, makes the ultimate decision regarding whether the<br />
person satisfies the commitment requirements. 524 The trial court is not bound by the<br />
examiners’ opinions, even when the two examiners agree. 525 Where the two examiners agree<br />
the respondent does not meet the commitment criteria <strong>and</strong> the trial court nonetheless finds that he<br />
does, the trial court will be affirmed where it adequately explains its ruling <strong>and</strong> the ruling is<br />
supported by the record, 526 but may be reversed if it has not adequately explain why it rejected<br />
the expert opinions. 527<br />
Where the experts disagree, it is for the trial court to decide which expert or experts to<br />
credit. 528 The trial court is warranted in declining to credit the testimony <strong>of</strong> an examiner who<br />
displays an “idiosyncratic interpretation” <strong>of</strong> one <strong>of</strong> the commitment elements, <strong>and</strong> views the<br />
523 In re Markham, No. A05-2221, 2006 WL 696540, at *6 (Minn. Ct. App. Mar. 21, 2006)<br />
(unpublished).<br />
524 Keiser v. Sheppard, 194 N.W.2d 286 (Minn. 1972); In re Paulsen, No. A05-1997, 2006 WL<br />
619119, at *2 (Minn. Ct. App. Mar. 14, 2006) (unpublished) (citing In re Moll, 347 N.W.2d 67,<br />
70 (Minn. Ct. App. 1984)).<br />
525 Keiser, 194 N.W.2d at 288; In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn.<br />
Ct. App. Aug. 28, 2007) (unpublished).<br />
526 In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn. Ct. App. Aug. 28, 2007)<br />
(unpublished)<br />
527 In re Buckner, No. A09-1420, 2009 WL 4574169, at *2 (Minn. Ct. App. Dec. 8, 2009)<br />
(unpublished).<br />
528 In re Crow, No. A08-0962, 2008 WL 4778282, at *5 (Minn. Ct. App. Nov. 4, 2008), review<br />
denied (Minn. Jan. 20, 2009) (unpublished) (stating the district court specifically determined that<br />
one examiner’s opinion was credible, while two others were not); In re Garza, No. A08-0288,<br />
2008 WL 2889700, at 7 (Minn. Ct. App. July 29, 2008) (unpublished); In re Ellringer, No. A08-<br />
0346, 2008 WL 2889731, at *5 (Minn. Ct. App. July 29, 2008) (unpublished); In re Owens,<br />
No. A08-0430, 2008 WL 2889864, at *2 (Minn. Ct. App. July 29, 2008), review denied (Minn.<br />
Oct. 21, 2008) (unpublished); In re Lentz, No. A07-670, 2007 WL 2770417, at *3, 5 (Minn. Ct.<br />
App. Sept. 25, 2007) (unpublished) (saying, “It was the district court’s prerogative to credit the<br />
testimony <strong>of</strong>” one examiner over another); In re Domrose, No. A07-649, 2007 WL 2703154, at<br />
*2 (Minn. Ct. App. Sept. 18, 2007) (unpublished) (saying, “But it is the district court’s role to<br />
evaluate the testimony <strong>of</strong> experts,” <strong>and</strong> upholding lower court’s determination <strong>of</strong> one examiner’s<br />
testimony “ to not be credible <strong>and</strong> persuasive on this issue”); In re Brown, No. A07-593, 2007<br />
WL 2367601, at *2 (Minn. Ct. App. Aug. 21, 2007) (unpublished) (deferring to district court’s<br />
assessment that examiner’s testimony regarding less-restrictive alternatives lacked credibility);<br />
In re Black, No. A06-2262, 2007 WL 1470592, at *5 (Minn. Ct. App. May 22, 2007)<br />
(unpublished) (saying, “The district court was in a position to judge the credibility <strong>of</strong> the three<br />
experts <strong>and</strong>, in its discretion, to credit the opinions <strong>of</strong> two <strong>of</strong> the experts over the third”); In re<br />
Fageroos, No. A06-1947, 2007 WL 509748, at *4 (Minn. Ct. App. Feb. 20, 2007) (unpublished);<br />
In re Deloach, No. A05-985, 2005 WL 2496010, at *4 (Minn. Ct. App. Oct. 11, 2005)<br />
(unpublished).<br />
72
statutory terms in their medical, rather than their legal sense, 529 or who makes a number <strong>of</strong><br />
acknowledged mistakes in his assessment. 530<br />
Where the experts in the case agree that particular actuarial risk assessment instruments<br />
are generally accepted in the scientific community, a district court did not abuse its discretion in<br />
considering the second prong <strong>of</strong> the Frye-Mack 531 st<strong>and</strong>ard, that the test complied with<br />
appropriate st<strong>and</strong>ards <strong>and</strong> controls, through questioning <strong>of</strong> the experts at trial rather than by<br />
conducting a separate Frye-Mack hearing before trial. 532 However, because the burden <strong>of</strong><br />
demonstrating the reliability <strong>of</strong> scientific evidence is on the proponent, it was error (albeit<br />
harmless) for the court to in effect place the burden on the proposed patient to show that the<br />
instruments were not administered in a reliable manner. 533<br />
The district court does not abuse its discretion by allowing the court examiners to testify<br />
as to the “ultimate questions” <strong>of</strong> whether the person is an SPP or SDP <strong>and</strong> whether the person<br />
satisfies the individual elements <strong>of</strong> the commitment st<strong>and</strong>ard. 534 Indeed, the commitment rules<br />
require the examiners to address these questions, <strong>and</strong> the Minnesota Rules <strong>of</strong> Evidence allow<br />
expert testimony addressing the ultimate issue. 535<br />
M. Attorney For Proposed Patient.<br />
A commitment respondent has the right to a court-appointed attorney, but not an<br />
unbridled right to have the court provide the attorney the respond would select. 536 The trial court<br />
has the discretion to place a limit on the fees to be paid to the court-appointed attorney for the<br />
proposed patient, where the trial court takes into account the complexity <strong>of</strong> the case <strong>and</strong> where<br />
the fee order provides that the attorney may request that the fee limit be increased. 537<br />
N. Previous Plea Agreements.<br />
The supreme court has held that a criminal plea agreement providing that the court would<br />
not refer the defendant for civil commitment at the time <strong>of</strong> sentencing did not preclude the<br />
529 In re Freeman, No. A05-976, 2005 WL 2496001, at *2 (Minn. Ct. App. Oct. 11, 2005)<br />
(unpublished).<br />
530<br />
In re Fageroos, No. A06-1947, 2007 WL 509748, at *4 (Minn. Ct. App. Feb. 20, 2007)<br />
(unpublished).<br />
531<br />
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn.<br />
1980).<br />
532 In re Fugelseth, No. A03-1330, 2004 WL 422695, at *4-5 (Minn. Ct. App. Mar. 9, 2004).<br />
533 Id.<br />
534 In re Jackson, 658 N.W.2d 219, 226-27 (Minn. Ct. App. 2003); In re Givens, No. C4-02-995,<br />
2002 WL 31554041, at *4 (Minn. Ct. App. Nov. 19, 2002) (unpublished).<br />
535 Jackson, 658 N.W.2d at 226-27, citing Minn. R. Evid. 704 <strong>and</strong> Minn. R. Civ. Commit. 23.<br />
536 In re Lonergan, No. A08-0394, 2008 WL 2967088, at *5 (Minn. Ct. App. Aug. 5, 2008),<br />
review denied (Minn. Oct. 21, 2008) (unpublished).<br />
537 In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at *6 (Minn. Ct. App. June 20,<br />
2000).<br />
73
county attorney, on behalf <strong>of</strong> the Department <strong>of</strong> Corrections, from bringing an SPP/SDP<br />
commitment petition against the person at the time <strong>of</strong> his release from prison. 538 The court held<br />
that the clear language <strong>of</strong> the plea agreement referred only to a referral by the criminal court, <strong>and</strong><br />
only at the time <strong>of</strong> criminal sentencing, <strong>and</strong> was not intended to preclude a later petition by<br />
someone else, even if represented by the county attorney. 539 In a footnote, the court expressed<br />
“strong reservations” as to whether either the county attorney or the criminal court would have<br />
the authority to enter a plea agreement precluding a later SPP/SDP commitment petition. 540<br />
O. Collateral Estoppel Effect <strong>of</strong> Previous <strong>Commitment</strong> Proceedings <strong>and</strong><br />
Previous Criminal Proceedings.<br />
A prior unsuccessful commitment proceeding does not preclude a later one, where the<br />
patient’s condition or circumstances have changed making a new petition appropriate. Collateral<br />
estoppel does not apply in such a situation. 541 In addition, collateral estoppel does not apply<br />
where the previous petition was dismissed by the county attorney before trial. 542 Nor does<br />
collateral estoppel bar a new petition by a different county than the one that brought the prior<br />
petition. 543<br />
Dismissal <strong>of</strong> charges in a previous criminal proceeding does not bar a determination in a<br />
later commitment proceeding that the person committed the act in question, because the criminal<br />
court did not determine that the act did not occur. 544 In addition, because <strong>of</strong> the higher st<strong>and</strong>ard<br />
<strong>of</strong> pro<strong>of</strong> in criminal cases, an act may be proved in a civil commitment case even though the<br />
person has been acquitted <strong>of</strong> the act in a criminal prosecution. 545<br />
538 In re Ashman, 608 N.W.2d 853 (Minn.), cert. denied, 531 U.S. 850 (2000), appeal after<br />
rem<strong>and</strong>, No. C8-00-1921, 2001 WL 379107 (Minn. Ct. App. Apr. 17, 2001) (unpublished).<br />
539 Ashman, 608 N.W.2d at 859.<br />
540 Id. at 859 n.7.<br />
541 In re McPherson, 476 N.W.2d 520, 521 (Minn. Ct. App. 1991) (petition alleging mental<br />
retardation); In re Anderson, No. A06-2008, 2007 WL 824019, at *5 (Minn. Ct. App. Mar. 20,<br />
2007) (unpublished); In re Eberhart, No. A06-2044, 2007 WL 738719, at *1 (Minn. Ct. App.<br />
Mar. 13, 2007) (unpublished); In re Alverson, No. A06-1567, 2007 WL 447159, at *10-11<br />
(Minn. Ct. App. Feb. 13, 2007) (unpublished).<br />
542 In re Anderson, No. A06-2008, 2007 WL 824019, at *5 (Minn. Ct. App. Mar. 20, 2007)<br />
(unpublished); In re Eberhart, No. A06-2044, 2007 WL 738719, at *1 (Minn. Ct. App. Mar. 13,<br />
2007) (unpublished).<br />
543 Id.<br />
544 In re Anderson, No. A06-2008, 2007 WL 824019, at *6 (Minn. Ct. App. Mar. 20, 2007)<br />
(unpublished).<br />
545 In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (involving mentally ill <strong>and</strong> dangerous<br />
commitment).<br />
74
However, the commitment respondent may not dispute the prior conviction, because a<br />
“person convicted <strong>of</strong> a crime may not attack a valid criminal conviction in a subsequent civil<br />
proceeding.” 546<br />
P. Deadlines for Hearing.<br />
Minnesota Statutes § 253B.08, subd. 1, specifies deadlines for holding the commitment<br />
hearing. In SPP <strong>and</strong> SDP cases, the hearing must be held within 90 days after the filing <strong>of</strong> the<br />
petition; this period may be extended for up to 30 additional days, for good cause. 547 The statute<br />
states that the petition must be dismissed if the hearing is not held within the specified time.<br />
Where the court finds good cause to extend the hearing as allowed by the statute, the extension<br />
does not violate the respondent’s due process rights. 548 A provision allowing the respondent to<br />
dem<strong>and</strong> an immediate hearing was amended in 2008 so that it no longer applies to SPP <strong>and</strong> SDP<br />
cases. 549<br />
The supreme court has held that the time restrictions in section 253B.08, subd. 1, are<br />
“m<strong>and</strong>atory” <strong>and</strong> that the case must be dismissed if the time limits are not met, but that these<br />
restrictions do not define or limit subject matter jurisdiction.” 550 Therefore, the proposed patient<br />
may waive these time requirements, either expressly or by conduct. 551 A proposed patient<br />
waived the statutory hearing deadline where his attorney scheduled an examination by the<br />
court examiner for a date after the expiration <strong>of</strong> the 44 days (the time allowed for hearing before<br />
a 2005 amendment), 552 by giving the court a trial readiness date after the deadline, 553 <strong>and</strong> by<br />
making a pretrial motion concerning records that necessitated briefing after the deadline. 554 The<br />
proposed patient will be bound by his counsel’s waiver unless the record shows that the proposed<br />
patient articulated instructions to his counsel not to waive the time limit. 555<br />
Where the petition is dismissed for failure to hold a hearing within the required period,<br />
the dismissal is without prejudice, <strong>and</strong> the county may re-file the petition relying on the same<br />
conduct that supported the previous petition. 556<br />
546 In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008)<br />
(unpublished), review denied (Minn. Oct. 21, 2008), citing Noske v. Friedberg, 670 N.W.2d 740,<br />
744 (Minn. 2003).<br />
547 Minn. Stat. § 253B.08, subd. 1 (2009).<br />
548 In re Larson, No. A08-1486, 2009 WL 1049171, at *7 (Minn. Ct. App. Apr. 21, 2009)<br />
(unpublished), review denied (Minn. June 30, 2009).<br />
549 2008 Minn. Laws, ch. 299, § 12.<br />
550 In re Giem, 742 N.W.2d 422, 428-29 (Minn. 2007).<br />
551 Id. at 431-32.<br />
552 In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)<br />
(unpublished).<br />
553 In re Hall, No. C9-96-1940, 1997 WL 228971 (Minn. Ct. App. May 6, 1997) (unpublished).<br />
554 In re Buckhalton, 503 N.W.2d 148, 151 (Minn. Ct. App. 1993).<br />
555 In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)<br />
(unpublished) (citing former Minn. R. Civ. Comm. 4.06(d) in Minn. Stat. (1998)).<br />
556 In re Giem, 742 N.W.2d 422, 433 (Minn. 2007).<br />
75
Q. Trial.<br />
The commitment rules do not allow a proposed patient to represent himself, <strong>and</strong> a trial<br />
court did not abuse its discretion in denying the proposed patient’s motion to represent himself,<br />
where the court did allow the proposed patient to participate in the cross-examination <strong>of</strong> some<br />
witnesses. 557<br />
Use <strong>of</strong> depositions at trial is governed by the Rules <strong>of</strong> <strong>Civil</strong> Procedure. 558 Thus,<br />
deposition testimony could be used over the proposed patient’s objection where a witness was<br />
out <strong>of</strong> state. 559 And the trial court did not abuse its discretion in finding that there were<br />
“exceptional circumstances” allowing the use <strong>of</strong> a deposition <strong>of</strong> a victim, based on the victim’s<br />
fear <strong>of</strong> testifying in the proposed patient’s presence, <strong>and</strong> the fact that she did testify at trial, albeit<br />
outside the proposed patient’s immediate presence. 560<br />
Testimony <strong>of</strong> a witness by telephone or interactive TV or other electronic means is<br />
permissible if 24 hours notice is given to the other party prior to the hearing <strong>and</strong> the court<br />
approves it. 561<br />
Sequestration <strong>of</strong> witnesses, to avoid harmonization <strong>of</strong> their testimony, rests in the<br />
discretion <strong>of</strong> the trial court. 562 A person challenging the court’s refusal to sequester witnesses<br />
must show prejudice resulting from the decision. 563<br />
Allowing two victims to testify outside the presence <strong>of</strong> the proposed patient was not<br />
an abuse <strong>of</strong> discretion where (1) the witnesses were in the presence <strong>of</strong> judge, so the judge could<br />
observe indicia <strong>of</strong> credibility <strong>and</strong> (2) the proposed patient <strong>and</strong> his attorney were in a separate<br />
room but could hear the testimony, <strong>and</strong> the attorney could question the witnesses. The<br />
Confrontation Clause did not bar this practice, since it does not apply to civil proceedings. 564<br />
The proposed patient cannot complain that he had inadequate time to prepare for a<br />
witness’s testimony where he rejects the trial court’s <strong>of</strong>fer <strong>of</strong> a continuance to prepare. 565<br />
557 Irwin, 529 NW.2d at 371.<br />
558 Id. at 372.<br />
559 Id.<br />
560 Id.<br />
561 Minn. R. Civ. Commit. 14. Prior to the adoption <strong>of</strong> this rule, the court <strong>of</strong> appeals had held<br />
that telephone testimony over the objection <strong>of</strong> the proposed patient is impermissible. See<br />
Bieganowski, 520 N.W.2d at 528.<br />
562 In re Meyer, No. A07-460, 2007 WL 2770186, at *5 (Minn. Ct. App. Sept. 25, 2007)<br />
(unpublished).<br />
563 Id.<br />
564 Irwin, 529 N.W.2d at 372-73.<br />
565 In re Fageroos, No. A06-1947, 2007 WL 509748, at *5 (Minn. Ct. App. Feb. 20, 2007)<br />
(unpublished).<br />
76
The trial court has discretion to limit the length <strong>of</strong> cross-examination, <strong>and</strong> such limits<br />
will be held erroneous only if the discretion is abused. 566 And the trial court had discretion to<br />
preclude cross-examination <strong>of</strong> a victim about sexual abuse by other persons, out <strong>of</strong> concern that<br />
such questioning would unnecessarily “revictimize” the witness. 567 This is particularly true<br />
because SDP commitment does not require a showing <strong>of</strong> actual harm to the victim, but only that<br />
the proposed patient’s conduct “create ‘a substantial likelihood <strong>of</strong> serious emotional harm.’” 568<br />
The court may reopen the trial to take additional evidence if the st<strong>and</strong>ard for a new<br />
trial under Minnesota Rules <strong>of</strong> <strong>Civil</strong> Procedure 59.01(d) is satisfied, i.e., “[m]aterial evidence,<br />
newly discovered, which with reasonable diligence could not have been found <strong>and</strong> produced at<br />
the trial.” 569 The proposed patient’s behavior while being held at the Minnesota Sex Offender<br />
Program pending a decision in the case may constitute “material new evidence” warranting the<br />
reopening <strong>of</strong> the trial. 570 On appeal, the reopening <strong>of</strong> the trial is reviewed under an abuse-<strong>of</strong>discretion<br />
st<strong>and</strong>ard. 571 However, it is not an abuse <strong>of</strong> discretion to prohibit the proposed patient<br />
from <strong>of</strong>fering an affidavit from his mother along with his written closing argument, where the<br />
evidence could have been <strong>of</strong>fered during the course <strong>of</strong> the trial <strong>and</strong> providing it in an affidavit<br />
following trial foreclosed any cross-examination. 572<br />
R. Evidentiary Issues.<br />
Minnesota Statutes § 253B.08, subd. 7 (2009), provides: “The court shall admit all<br />
relevant evidence at the hearing. The court shall make its determination upon the entire record<br />
pursuant to the rules <strong>of</strong> evidence.” Similarly, <strong>Commitment</strong> Rule 15 states: “The Court may<br />
admit all relevant, reliable evidence, including but not limited to the respondent’s medical<br />
records, without requiring foundation witnesses.”<br />
In In re Williams, 573 the court <strong>of</strong> appeals held that, except for the rules relating to<br />
relevance, the Rules <strong>of</strong> Evidence do not directly apply to civil commitment cases. The court<br />
said that the statutory language “shall make its determination upon the entire record pursuant to<br />
the rules <strong>of</strong> evidence” refers only to the relevance determination. 574<br />
566 In re Preston, 629 N.W.2d 104, 114-15 (Minn. Ct. App. 2001).<br />
567 In re Krych, No. A07-2069, 2008 WL 1800140, at *2 (Minn. Ct. App. Apr. 22, 2008)<br />
(unpublished).<br />
568 Id. (citing In re Martin, 661 N.W.2d 632, 638 (Minn. Ct. App. 2003)).<br />
569 In re Meyer, No. A07-460, 2007 WL 2770186, at *5 (Minn. Ct. App. Sept. 25, 2007)<br />
(unpublished).<br />
570 Id.<br />
571 Id.; In re Cox, No. A08-0910, 2009 WL 113397, at *3 (Minn. Ct. App. Jan. 20, 2009), review<br />
denied (Minn. Mar. 31, 2009) (unpublished).<br />
572 In re Domrose, No. A07-649, 2007 WL 2703154, at *4 (Minn. Ct. App. Sept. 18, 2007)<br />
(unpublished).<br />
573 In re Williams, 735 N.W.2d 727 (Minn. Ct. App. 2007); see also In re Lee, No. C0-02-1089,<br />
2002 WL 31894696, at *4 (Minn. Ct. App. Dec. 31, 2002) (unpublished) (same holding in<br />
chemical dependency commitment case).<br />
574 Williams, 735 N.W.2d at 730-31.<br />
77
The appellate court in Williams upheld the district court’s decision to admit <strong>and</strong> consider<br />
summaries <strong>of</strong> victims’ accounts <strong>of</strong> Williams’ <strong>of</strong>fenses. But the appellate court emphasized the<br />
district court’s careful consideration <strong>of</strong> the reliability <strong>of</strong> the victims’ accounts, noting that the<br />
district court had “diligently vetted” the challenged exhibits “<strong>and</strong> examined the reliability <strong>of</strong> each<br />
statement, line-by-line,” excluding many statements as unreliable. 575 Considering Williams’s<br />
argument that the admission <strong>of</strong> hearsay statements violated his due process rights, the court <strong>of</strong><br />
appeals said:<br />
[W]e do not lightly dismiss Williams’s concern about fairness as it regards the<br />
consideration <strong>of</strong> hearsay. We observe that the trustworthiness <strong>of</strong> evidence is the<br />
primary concern <strong>of</strong> the rules <strong>of</strong> evidence generally <strong>and</strong> <strong>of</strong> the hearsay rule<br />
particularly. The purpose <strong>of</strong> the hearsay rule with its various exceptions is to<br />
prevent unreliable evidence from infecting the fairness <strong>of</strong> process. 576<br />
The court then said:<br />
[W]e are persuaded that the district court’s thoughtful preview <strong>of</strong> <strong>of</strong>fered<br />
evidence satisfies the concern about trustworthiness <strong>of</strong> evidence in this case so<br />
that admission <strong>of</strong> the challenged hearsay evidence about Williams’s history <strong>of</strong><br />
sexual misconduct does not <strong>of</strong>fend his right to a fundamentally fair proceeding. 577<br />
The court also noted that the Confrontation Clause does not come into play because it does not<br />
apply to commitment proceedings. 578<br />
The court commented that the lower court’s reliability determination was similar to a<br />
court’s determination that evidence satisfies the “residual hearsay exception” <strong>of</strong> Minn. R.<br />
Evid. 807—that the evidence have circumstantial guarantees <strong>of</strong> trustworthiness that are<br />
equivalent to the hearsay exceptions specifically provided in the Rules <strong>of</strong> Evidence. 579<br />
In In re Blaylock, an unpublished opinion after Williams, the appellate court upheld the<br />
admission <strong>of</strong> two apparently reliable victims’ statements in police reports even though the<br />
district court did not recite that it had “carefully vetted” or done a “line-by-line” review <strong>of</strong> the<br />
challenged statements. 580 The appellate court said, “Although the district court in Williams<br />
‘examined the reliability’ <strong>of</strong> each challenged statement ‘line-by-line,’ no statute or caselaw<br />
requires that approach. The statements need simply bear ‘indicia <strong>of</strong> reliability’ to be considered,<br />
575<br />
Id. at 731-32.<br />
576<br />
Id. at 732.<br />
577<br />
Id.<br />
578<br />
Id. (citing In re Irwin, 529 N.W.2d 366, 373 (Minn. Ct. App. 1995)).<br />
579<br />
Id.at 732-33.<br />
580<br />
In re Blaylock, No. A09-0153, 2009 WL 2151301, at *3 (Minn. Ct. App. July 21, 2009)<br />
(unpublished).<br />
78
unless they are shown to be false or unreliable.” 581 But the appellate court held that, absent an<br />
explanation from the district court <strong>of</strong> why it found the statements reliable, the appellate court<br />
would not consider two other victims’ police statements that were “shaky” or where<br />
“circumstances surrounding the accounts suggest doubt concerning their reliability.” 582 In<br />
another unpublished opinion, In re Pittman, the appellate court upheld the admission <strong>of</strong> victim<br />
statements based on Williams, saying, “The statements made by the victims are internally<br />
consistent <strong>and</strong> are generally consistent with each other, which lends some corroboration to the<br />
victims' claims.” 583<br />
A presumption in favor <strong>of</strong> admissibility applies in commitment cases. 584 “The decision<br />
<strong>of</strong> whether to admit or exclude evidence is within the district court’s discretion <strong>and</strong> will be<br />
reversed only if the court has clearly abused its discretion.” 585<br />
As noted above, <strong>Commitment</strong> Rule 15 states: “The Court may admit all relevant,<br />
reliable evidence, including but not limited to the respondent’s medical records, without<br />
requiring foundation witnesses.” This provision means, at least, that foundation testimony is<br />
not necessary to admit such evidence where the court finds it to be reliable.<br />
Before the ruling in Williams that the evidentiary rules do not strictly apply to<br />
commitment cases, the appellate court issued a number <strong>of</strong> decisions regarding the<br />
admissibility <strong>of</strong> evidence in SPP <strong>and</strong> SDP commitment cases.<br />
The trial court did not abuse its discretion by admitting hearsay statements <strong>of</strong> a victim<br />
under Minn. R. Evid. 804(b)(5), where (1) the victim could not be found, (2) the circumstances<br />
<strong>of</strong> the victim’s confiding the information to a friend suggested reliability, (3) the victim’s<br />
statements were partially corroborated by the friend’s own observations <strong>and</strong> (4) the proposed<br />
patient had admitted some <strong>of</strong> the facts previously related by the victim. 586 In another case,<br />
however, the appellate court assumed, without deciding, that admission <strong>of</strong> hearsay statements <strong>of</strong><br />
sex <strong>of</strong>fense victims within police records was improper, at least where there was no separate<br />
determination <strong>of</strong> the reliability <strong>of</strong> the statements. 587 And the appellate court in a different case<br />
held that the trial court lacked sufficient evidence to support a finding that the proposed patient<br />
581<br />
Id.<br />
582<br />
Id.<br />
583<br />
In re Pittman, No. A09-1931, 2010 WL 1541453, at *4 (Minn. Ct. App. Apr. 20, 2010)<br />
(unpublished).<br />
584<br />
Id.at 731.<br />
585<br />
In re Ramey, 648 N.W.2d 260, 270 (Minn. Ct. App. 2002); In re Robb, 622 N.W.2d 564, 571<br />
(Minn. Ct. App. 2001) (saying, “Absent erroneous interpretation <strong>of</strong> the law, the question <strong>of</strong><br />
whether to admit or exclude evidence is within the trial court's discretion”).<br />
586<br />
Irwin, 529 N.W.2d at 374.<br />
587<br />
In re Woodruff, No. C6-98-118, 1998 WL 345478, at *1 (Minn. Ct. App. June 30, 1998)<br />
(unpublished) (holding that, if admission <strong>of</strong> hearsay statements <strong>of</strong> alleged victims in police<br />
records was error, it was not prejudicial because there was sufficient other evidence <strong>of</strong> sexual<br />
misconduct).<br />
79
had sexually assaulted an alleged victim where the finding was based only on information in a<br />
pre-petition screening report. 588<br />
“A ‘person convicted <strong>of</strong> a crime may not attack a valid criminal conviction in a<br />
subsequent civil proceeding.’” 589 Where a former victim is unavailable, the transcript <strong>of</strong> the<br />
person’s previous testimony is not hearsay if the commitment respondent had an opportunity to<br />
cross-examine the witness in the earlier criminal trial. 590<br />
A pre-petition screening report was admissible under Minn. R. Evid. 803(8) as a report<br />
by an agency made pursuant to law as to which matters there was a duty to report, unless the<br />
sources <strong>of</strong> information or other circumstances indicate lack <strong>of</strong> trustworthiness. 591 Department<br />
<strong>of</strong> Corrections assessments were properly admitted under the same provision, even where they<br />
contained opinions. 592<br />
The trial court’s consideration <strong>of</strong> possibly inadmissible hearsay is not ground for reversal<br />
<strong>of</strong> the commitment where there was other sufficient evidence to satisfy the disputed commitment<br />
requirement. 593<br />
In two cases, the court <strong>of</strong> appeals held that a trial court did not abuse its discretion in<br />
allowing victims to testify, even though the facts <strong>of</strong> the assaults were established by plea<br />
records 594 or the proposed patient was willing to stipulate to the acts. 595 And the trial court did<br />
not err in allowing its examiner to listen to the victims’ testimony to form her final opinion to be<br />
provided to the court. 596<br />
588<br />
In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)<br />
(unpublished).<br />
589<br />
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008)<br />
(unpublished), review denied (Minn. Oct. 21, 2008) (quoting Noske v. Friedberg, 670 N.W.2d<br />
740, 744 (Minn.2003)).<br />
590<br />
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008)<br />
(unpublished), review denied (Minn. Oct. 21, 2008) (citing Minn. R. Evid. 804(b)(1)).<br />
591<br />
Id.<br />
592<br />
In re Schultz, No. CX-99-1296, 1999 WL 1100941, at *3 (Minn. Ct. App. Nov. 30, 1999)<br />
(unpublished).<br />
593<br />
In re Woodruff, No. C6-98-118, 1998 WL 345478, at *1 (Minn. Ct. App. June 30, 1998)<br />
(unpublished) (holding that, if admission <strong>of</strong> hearsay statements <strong>of</strong> alleged victims in police<br />
records was error, it was not prejudicial because there was sufficient other evidence <strong>of</strong> sexual<br />
misconduct); In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997)<br />
(unpublished).; see also In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App.<br />
Jan. 13, 2004) (unpublished) (holding that there was insufficient evidence to support findings<br />
regarding two victims, but findings regarding remaining victims were sufficient to constitute<br />
“course <strong>of</strong> harmful sexual conduct”).<br />
594<br />
In re Beals, No. C9-92-2335, 1993 WL 52180 (Minn. Ct. App. Mar. 2, 1993) (unpublished),<br />
aff’d (Minn. Feb. 4, 1994).<br />
595<br />
In re Swan, No. CX-97-2041, 1998 WL 217190 (Minn. Ct. App. May 5, 1998) (unpublished).<br />
596 Id.<br />
80
A committing court did not violate the proposed patient’s attorney-client privilege by<br />
relying on the fact that he began “showing insight” only after conferring with his attorney after<br />
the first meeting with a court examiner. 597<br />
Consistent with the commitment statute, the court <strong>of</strong> appeals has held that a proposed<br />
patient’s counseling <strong>and</strong> treatment files are not privileged, <strong>and</strong> may be considered in a<br />
commitment case. 598 A trial court broadly construed the statutory provision to waive privileges<br />
for any form <strong>of</strong> therapy, even forms not specifically mentioned in the statute. 599 Nor is there a<br />
privilege for the proposed patient’s self-disclosures in prior treatment, 600 <strong>and</strong> the trial court<br />
does not err in admitting <strong>and</strong> considering such self-disclosures. 601 Nor does the trial court err in<br />
crediting the proposed patient’s previous admissions over his current denials in his commitment<br />
trial. 602 A trial court does not abuse its discretion in admitting the proposed patient’s juvenile<br />
records, because it “would have been impossible for the examiners to complete a thorough<br />
analysis <strong>of</strong> the necessary factors without access to appellant’s entire history including his<br />
juvenile history. 603<br />
The district court does not abuse its discretion by allowing the court examiners to testify<br />
as to the “ultimate questions” <strong>of</strong> whether the person is an SPP or SDP <strong>and</strong> whether the person<br />
satisfies the individual elements <strong>of</strong> the commitment st<strong>and</strong>ard. 604 Indeed, the commitment rules<br />
require the examiners to address these questions, <strong>and</strong> the Minnesota Rules <strong>of</strong> Evidence allow<br />
expert testimony addressing the ultimate issue. 605<br />
The determination <strong>of</strong> whether a person qualifies as an expert is almost entirely within<br />
the trial court’s discretion. 606 Likewise, determining the foundation required for expert<br />
testimony is within the discretion <strong>of</strong> the trial court. 607<br />
597 Id.<br />
598 In re Robb, 622 N.W.2d 564, 575-76 (Minn. Ct. App. 2001); In re Call, No. C9-93-501, 1993<br />
WL 207824 (Minn. Ct. App. June 15, 1993) (unpublished), aff’d (Minn. Feb. 4, 1994).<br />
599 In re Larson, No. C6-97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998)<br />
(unpublished) (court applied waiver to psychologist, even though statute at time did not include<br />
psychologists).<br />
600 In re Muller, No. C7-96-141, 1997 WL 600457 (Minn. Ct. App. Sept. 30, 1997)<br />
(unpublished).<br />
601 In re Comeau, No. A08-1106, 2008 WL 5336104, at *1-3 (Minn. Ct. App. Dec. 23, 2008)<br />
(unpublished).<br />
602 In re Rask, Nos. A08-1312, A08-1551, 2009 WL 511943, at *1 (Minn. Ct. App. Feb. 26,<br />
2009) (unpublished)<br />
603 In re Folson, No. A07-1916, 2008 WL 853597, at *1 (Minn. Ct. App. Apr. 1, 2008)<br />
(unpublished).<br />
604 In re Jackson, 658 N.W.2d 219, 226-27 (Minn. Ct. App. 2003); In re Givens, No. C4-02-995,<br />
2002 WL 31554041, at *4 (Minn. Ct. App. Nov. 19, 2002) (unpublished).<br />
605 Jackson, 658 N.W.2d at 226-27 (citing Minn. R. Evid. 704 <strong>and</strong> Minn. R.Civ. Commit. 23).<br />
606 In re Martinelli, No. C6-98-569, 1998 WL 613845, at *6 (Minn. Ct. App. Sept. 15, 1998)<br />
(unpublished), rem<strong>and</strong>ed (Minn. Aug. 5, 1999), appeal after rem<strong>and</strong>, No. C4-00-748, 2000 WL<br />
81
Where the experts in the case agree that particular actuarial risk assessment<br />
instruments are generally accepted in the scientific community, a district court did not abuse its<br />
discretion in considering the second prong <strong>of</strong> the Frye-Mack 608 st<strong>and</strong>ard, that the test complied<br />
with appropriate st<strong>and</strong>ards <strong>and</strong> controls, through examination <strong>of</strong> the experts at trial rather than by<br />
conducting a separate Frye-Mack hearing before trial. 609 However, because the burden <strong>of</strong><br />
demonstrating the reliability <strong>of</strong> scientific evidence is on the proponent, it was error (albeit<br />
harmless) for the court to in effect place the burden on the proposed patient to show that the<br />
instruments were not administered in a reliable manner. 610<br />
While the results <strong>of</strong> polygraph tests are generally not admissible, “Minnesota has<br />
followed the majority <strong>of</strong> states that admit voluntary admissions made during a polygraph<br />
examination.” 611 Statements made during the pre-examination portion <strong>of</strong> the polygraph are also<br />
admissible. 612<br />
The trial court properly declined to take judicial notice <strong>of</strong> journal articles regarding<br />
adolescent brain development because they were not “sources whose accuracy cannot reasonably<br />
be questioned” <strong>and</strong> the experts at trial had not relied on the articles nor indicated familiarity with<br />
them. 613<br />
A trial court did not err in admitting police reports <strong>and</strong> Department <strong>of</strong> Corrections<br />
Documents where they were considered by the experts <strong>and</strong> the trial court determined that they<br />
were trustworthy. Such evidence is admissible under Minn. R. Evid. 703(b) to show the basis<br />
for the expert’s opinion, even though the trial court incorrectly considered the trustworthiness<br />
<strong>of</strong> the evidence under the business records exception rather than Rule 703(b). 614<br />
It is not an abuse <strong>of</strong> discretion to prohibit the proposed patient from <strong>of</strong>fering an affidavit<br />
from his mother along with his written closing argument, where the evidence could have been<br />
1285430 (Minn. Ct. App. Sept. 12, 2000) (unpublished), review denied (Minn. 2000), vacated<br />
<strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 1160, 122 S. Ct. 1171 (2002), aff’d after rem<strong>and</strong>, 649 N.W.2d 886<br />
(Minn. Ct. App. 2002).<br />
607<br />
In re Markham, No. A05-2221, 2006 WL 696540, at *6 (Minn. Ct. App. Mar. 21, 2006)<br />
(unpublished).<br />
608<br />
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn.<br />
1980).<br />
609 In re Fugelseth, No. A03-1330, 2004 WL 422695, at *4-5 (Minn. Ct. App. Mar. 9, 2004).<br />
610 Id.<br />
611 In re Anderson, No. A06-2008, 2007 WL 824019, at *7 (Minn. Ct. App. Mar. 20, 2007)<br />
(unpublished).<br />
612 Id.<br />
613 In re Shell, No. A08-1043, 2009 WL 1182152, at *7 (Minn. Ct. App. May 5, 2009)<br />
(unpublished).<br />
614 In re Robb, 622 N.W.2d 564, 575 (Minn. Ct. App. 2001).<br />
82
<strong>of</strong>fered during the course <strong>of</strong> the trial <strong>and</strong> providing it in an affidavit following trial foreclosed<br />
any cross-examination. 615<br />
S. St<strong>and</strong>ard <strong>of</strong> Pro<strong>of</strong>; Evaluation <strong>of</strong> Evidence<br />
The st<strong>and</strong>ard <strong>of</strong> pro<strong>of</strong> in SPP/SDP cases, as in other commitment cases, is clear <strong>and</strong><br />
convincing evidence. 616 The court <strong>of</strong> appeals has held that this burden satisfies due process. 617<br />
Clear <strong>and</strong> convincing evidence is more than a preponderance but less than pro<strong>of</strong> beyond a<br />
reasonable doubt. 618 The st<strong>and</strong>ard is satisfied when “the truth <strong>of</strong> the facts sought to be admitted<br />
is ‘highly probable.’” 619 The court <strong>of</strong> appeals has said that clear <strong>and</strong> convincing evidence is<br />
evidence that is “unequivocal <strong>and</strong> uncontradicted <strong>and</strong> intrinsically probably <strong>and</strong> credible.” 620<br />
This does not mean, however, that the testimony on each point must be undisputed; “A trial court<br />
must still resolve inconsistencies in testimony by weighing the credibility <strong>of</strong> the testimony <strong>and</strong><br />
evidence presented.” 621<br />
Because <strong>of</strong> the higher st<strong>and</strong>ard <strong>of</strong> pro<strong>of</strong> in criminal cases, an act may be proved in a civil<br />
commitment case even though the person has been acquitted <strong>of</strong> the act in a criminal<br />
prosecution. 622<br />
615<br />
In re Domrose, No. A07-649, 2007 WL 2703154, at *4 (Minn. Ct. App. Sept. 18, 2007)<br />
(unpublished).<br />
616<br />
Minn. Stat. § 253B.18, subd. 1 (2009).<br />
617<br />
See section V.C.2., below.<br />
618<br />
In re Peria, No. A06-1452, 2007 WL 235632, at *2 (Minn. Ct. App. Jan. 30, 2007)<br />
(unpublished); In re Rustman, No. A06-266, 2006 WL 1738283, at *1 (Minn. Ct. App. 2006)<br />
(unpublished); In re Hamann, No. A06-3, 2006 WL 1390590, at *1 (Minn. Ct. App. 2006)<br />
(unpublished).<br />
619<br />
In re Braylock, No. A06-1053, 2006 WL 3409875, at *2 n.1 (Minn. Ct. App. Nov. 28, 2006)<br />
(unpublished).<br />
620<br />
In re Rustman, No. A06-266, 2006 WL 1738283, at *1 (Minn. Ct. App. 2006) (unpublished)<br />
(citing Deli v Univ. <strong>of</strong> Minn., 511 N.W.2d 46, 52 (Minn. Ct. App. 1994)); In re Hamann,<br />
No. A06-3, 2006 WL 1390590, at *1 (Minn. Ct. App. 2006) (unpublished) (same).<br />
621<br />
In re Sims, No. A09-1312, 2009 WL 4911063, at *7 (Minn. Ct. App. Dec. 22, 2009)<br />
(unpublished), review denied (Minn. Feb. 16, 2010) (noting Deli st<strong>and</strong>ard, but holding that clear<br />
<strong>and</strong> convincing st<strong>and</strong>ard met despite disagreement between experts); In re Domrose,<br />
No. A07-649, 2007 WL 2703154, at *2 (Minn. Ct. App. Sept. 18, 2007) (unpublished) (same); In<br />
re Braylock, No. A06-1053, 2006 WL 3409875, at *2 n.1 (Minn. Ct. App. Nov. 28, 2006)<br />
(unpublished) (same).<br />
622<br />
In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (involving mentally ill <strong>and</strong> dangerous<br />
commitment).<br />
83
The trial court may properly credit a victim’s earlier statement that the victim later<br />
recanted, <strong>and</strong> even recants at the time <strong>of</strong> the commitment trial, if the evidence shows that the<br />
recantation is not credible. 623<br />
T. Findings.<br />
The statutory requirements for specificity <strong>of</strong> findings applicable to other types <strong>of</strong><br />
commitments do not apply to SPP <strong>and</strong> SDP commitments. 624 This includes findings relating to<br />
less restrictive alternatives. 625<br />
The court <strong>of</strong> appeals has held that a description in a pre-sentence investigation report <strong>of</strong><br />
an uncharged crime is not, without more, sufficient to support a finding that the acts occurred. 626<br />
Verbatim adoption <strong>of</strong> one party’s proposed findings is not error where the findings were<br />
supported by the evidence. 627 The appellate court reviews such findings to assure that they are<br />
supported by the record <strong>and</strong> that the trial court conscientiously considered all <strong>of</strong> the issues. 628<br />
When the district court has adopted proposed findings verbatim, the appellate court must conduct<br />
a “careful <strong>and</strong> searching review <strong>of</strong> the record.” 629 The appellate court must scrupulously review<br />
the findings, whether drafted by a party or the trial court, to assure that the are detailed <strong>and</strong><br />
623<br />
In re Jackson, 658 N.W.2d 219, 224-25 (Minn. Ct. App. 2003); In re Allan, No. A09-1607,<br />
2010 WL 608028 at *3-4 (Minn. Ct. App. Feb. 23, 2010) (unpublished).<br />
624<br />
Linehan III, 557 N.W.2d at 190; In re Prather, 1998 WL 887539, at *2 (Minn. Ct. App. 1998)<br />
(unpublished), rem<strong>and</strong>ed (Minn. Feb. 24, 1999), appeal after rem<strong>and</strong>, No. C0-00-987, 2000 WL<br />
1778321 (Minn. Ct. App. Nov. 21, 2000) (unpublished); In re McClure, No. C2-97-2244, 1998<br />
WL 436878, at *3 (Minn. Ct. App. Sept. 30, 1998) (unpublished).<br />
625<br />
Ayers, 570 N.W.2d at 25.<br />
626<br />
In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)<br />
(unpublished).<br />
627<br />
In re Fern<strong>and</strong>es, No. A06-506, 2006 WL 2947642, at *2 (Minn. Ct. App. Oct. 17, 2006)<br />
(unpublished); In re Foley, No. A04-2340, 2005 WL 1154334, at *7 (Minn. Ct. App. May 17,<br />
2005) (unpublished); In re Jones, No. C2-01-1293, 2001 WL 1491248, at *1-2 (Minn. Ct. App.<br />
Nov. 27, 2001) (unpublished) (trial court stated that it “carefully reviewed the proposed<br />
findings” submitted by the county <strong>and</strong> concluded that they “accurately, completely, <strong>and</strong> properly<br />
describe the evidence presented at trial”); In re Ivey, No. A04-1909, 2005 WL 832329, at *4<br />
(Minn. Ct. App. Apr. 12, 2005) (unpublished) (holding that “verbatim adoption <strong>of</strong> a party’s<br />
proposed findings <strong>and</strong> conclusions, while not encouraged, is not reversible error”); In re Swan,<br />
No. CX-97-2041, 1998 WL 217190 (Minn. Ct. App. May 5, 1998) (unpublished).<br />
628<br />
In re Scott, No. A09-0366, 2009 WL 2499266, at *6 (Minn. Ct. App. Aug. 18, 2009)<br />
(unpublished); In re Meyer, No. A07-460, 2007 WL 2770186, at *5 (Minn. Ct. App. Sept. 25,<br />
2007) (unpublished) (noting that trial court added a memor<strong>and</strong>um discussing many <strong>of</strong> disputed<br />
facts); In re Kirck<strong>of</strong>, No. A06-956, 2006 WL 3007995, at *7-8 (Minn. Ct. App. Oct. 24, 2006)<br />
(unpublished) (review showed that trial court revised some <strong>of</strong> the proposed findings).<br />
629<br />
In re Domrose, No. A07-649, 2007 WL 2703154, at *3 (Minn. Ct. App. Sept. 18, 2007)<br />
(unpublished).<br />
84
specific enough to warrant meaningful review. 630 A party may not challenge the court’s<br />
adoption <strong>of</strong> certain findings where he has stipulated to their adoption. 631 And the party’s<br />
argument regarding verbatim adoption <strong>of</strong> proposed findings fails where he fails to identify<br />
findings that he claims are incorrect. 632<br />
U. Stipulation For <strong>Commitment</strong>.<br />
Often, in the face <strong>of</strong> strong evidence, a proposed patient will stipulate to commitment.<br />
Such a stipulation is valid <strong>and</strong> an attempt by a committed person to have the stipulation<br />
invalidated will be evaluated according to the st<strong>and</strong>ards for vacating a stipulation in a civil<br />
matter, rather than the st<strong>and</strong>ards applied to withdrawn guilty pleas in criminal cases. 633 An<br />
agreement for civil commitment is not subject to the factual-basis requirement <strong>of</strong> a criminal<br />
Alford plea. 634<br />
A stipulation may be vacated if it is improvidently made <strong>and</strong> ought not to st<strong>and</strong> in equity<br />
<strong>and</strong> good conscience; examples include a stipulation based on fraud or duress that prejudices the<br />
party. 635<br />
Whether to vacate a stipulation rests largely in the discretion <strong>of</strong> the trial court, <strong>and</strong> will be<br />
reversed only for abuse <strong>of</strong> discretion. 636 A reviewing court gives deference to the district court’s<br />
findings that the stipulation was entered knowingly <strong>and</strong> intelligently. 637 Where the person has<br />
freely stipulated to findings <strong>and</strong> to commitment, he may not then challenge the findings to which<br />
630 In re Jennings, No. A05-1920, 2006 WL 696536, at *4-5 (Minn. Ct. App. Mar. 21, 2006)<br />
(unpublished); In re Williams, No. A05-1271, 2005 WL 3470517, at *3 (Minn. Ct. App. Dec. 20,<br />
2005) (unpublished).<br />
631 In re White, No. A05-231, 2005 WL 1804919, at *3 (Minn. Ct. App. Aug. 2, 2005)<br />
(unpublished).<br />
632 In re Fern<strong>and</strong>es, No. A06-506, 2006 WL 2947642, at *2 (Minn. Ct. App. Oct. 17, 2006)<br />
(unpublished).<br />
633 In re Rannow, 749 N.W.2d 393, 393 (Minn. Ct. App. May 20, 2008) (applying principles<br />
from SDP case law to stipulation for mentally ill <strong>and</strong> dangerous commitment); In re Hill,<br />
No. A05-2438, 2006 WL 1390587, at *3 (Minn. Ct. App. May 23, 2006) (unpublished); In re<br />
Sargent, No. A04-1767, 2005 WL 406345, at *2-3 (Minn. Ct. App. Feb. 22, 2005) (unpublished).<br />
634 Rannow, 749 N.W.2d at 399.<br />
635 Id. at 393; In re Harju, No. A09-1619, 2010 WL 431593, at *2 (Minn. Ct. App. Feb. 9, 2010)<br />
(unpublished), review denied (Minn. Apr. 20, 2010); In re Hill, No. A05-2438, 2006 WL<br />
1390587, at *3 (Minn. Ct. App. May 23, 2006) (unpublished); In re Sargent, No. A04-1767,<br />
2005 WL 406345, at *2-3 (Minn. Ct. App. Feb. 22, 2005) (unpublished).<br />
636 Rannow, 749 N.W.2d at 393; In re Harju, No. A09-1619, 2010 WL 431593, at *2 (Minn. Ct.<br />
App. Feb. 9, 2010) (unpublished), review denied (Minn. Apr. 20, 2010); In re Hill,<br />
No. A05-2438, 2006 WL 1390587, at *3 (Minn. Ct. App. May 23, 2006) (unpublished).<br />
637 In re Hopson, No. A06-976, 2006 WL 3199160, at *3 (Minn. Ct. App. Nov. 7, 2006)<br />
(unpublished).<br />
85
he has agreed. 638 Being committed only as an SDP, rather than also as an SPP, provides a<br />
rational basis for stipulating to commitment. 639<br />
V. Treatment Report <strong>and</strong> Review Hearing.<br />
Under Minn. Stat. § 253B.18, subd. 2 (2009), the facility to which the person is initially<br />
committed must evaluate the person <strong>and</strong> submit a “treatment report” to the trial court within 60<br />
days after the initial commitment. However, if the person is in prison at the time <strong>of</strong> the initial<br />
commitment, then the treatment report must be filed within 60 days after the person is released<br />
from prison <strong>and</strong> transferred to the Minnesota Sex Offender Program. 640 If the patient is<br />
committed as both SPP <strong>and</strong> SDP, but the treatment report neglects to address the SPP criteria,<br />
this does not preclude the trial court from indeterminately committing the person as SPP, in<br />
addition to SDP. However, the treatment facility may be required to submit a supplemental<br />
report <strong>and</strong> the person must then be provided an opportunity for a hearing addressing the<br />
supplemented report. 641<br />
The court <strong>of</strong> appeals apparently rejected a committed person’s argument that the report<br />
from the state treatment program was “merely an endorsement <strong>of</strong> the trial court’s order,” saying<br />
that “the statute on its face only requires that a treatment report is provided to the district<br />
court.” 642 Likewise, the appellate court rejected the argument that the treatment report did not<br />
specify an “individualized treatment plan,” saying that the statute did not require it. 643<br />
The trial court must hold a review hearing after receiving the treatment report from the<br />
facility to which the person was committed. 644 The supreme court has rejected the argument that<br />
the proposed patient must be given the opportunity to introduce any evidence he wishes relating<br />
to the commitment requirements, concluding that reopening the matter for a plenary review <strong>of</strong><br />
the recent commitment decision would generally be unproductive. 645 The court delineated the<br />
scope <strong>of</strong> the review hearing:<br />
638<br />
In re White, No. A05-231, 2005 WL 1804919, at *4 (Minn. Ct. App. Aug. 2, 2005)<br />
(unpublished).<br />
639<br />
In re Harju, No. A09-1619, 2010 WL 431593, at *3 (Minn. Ct. App. Feb. 9, 2010)<br />
(unpublished), review denied (Minn. Apr. 20, 2010).<br />
640<br />
Minn. Stat. § 253B.18, subd. 2(a) (2009)<br />
641<br />
In re Fisher, No. A05-579, 2005 WL 2209079, at *12-14 (Minn. Ct. App. Sept. 13, 2005)<br />
(unpublished).<br />
642<br />
In re Pyron, No. A08-638, 2008 WL 4007433, at *4 (Minn. Ct. App. Sept.2, 2008)<br />
(unpublished); see also In re Parks, No. A09-126, 2009 WL 2226792, at *7 (Minn. Ct. App.<br />
July 28, 2009) (unpublished), review denied (Minn. Oct. 20, 2009).<br />
643<br />
Id. at *5. Note, however, that Commit. & Treatment Act R. 23(d)(6) does require that the<br />
treatment report provide nine specified pieces <strong>of</strong> information, including “the respondent’s<br />
individual treatment plan.”<br />
644<br />
Minn. Stat. § 253B.18, subd. 2 (2009).<br />
645<br />
In re Linehan (Linehan II), 557 N.W.2d 167, 171 (Minn. 1996), vacated <strong>and</strong> rem<strong>and</strong>ed, 522<br />
U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).<br />
86
[E]vidence considered at the review hearing is properly limited to: (1) the<br />
statutorily required treatment report; (2) evidence <strong>of</strong> changes in the patient’s<br />
condition since the initial commitment hearing; <strong>and</strong> (3) such other evidence as in<br />
the district court’s discretion enhances its assessment <strong>of</strong> whether the patient<br />
continues to meet statutory criteria for commitment. 646<br />
The district court could properly decline to consider additional evidence from the proposed<br />
patient about prediction <strong>of</strong> dangerousness. 647 “The focus <strong>of</strong> the 60-day review hearing is to<br />
determine whether there is ‘evidence <strong>of</strong> changes in the patient’s condition since the initial<br />
commitment hearing.’ The goal is not to reassess whether the underlying st<strong>and</strong>ards for<br />
commitment are met.” 648 Where the patient retains additional experts at the review hearing who<br />
dispute the initial decision to commit the patient <strong>and</strong> whose testimony “is merely an attack on the<br />
opinions <strong>of</strong>fered by the court-appointed examiners at the initial trial,” their testimony is<br />
“irrelevant <strong>and</strong> outside the scope <strong>of</strong> review <strong>of</strong> the 60-day hearing.” 649 Because the issue is<br />
whether the patient’s condition has changed, the district court need not make new findings as to<br />
whether he meets the st<strong>and</strong>ards for commitment. 650<br />
Although the civil commitment court rules require that the treatment facility’s review<br />
report address nine specified items, 651 these are not the criteria the court must consider in<br />
deciding whether to indeterminately commitment the person. Instead, the st<strong>and</strong>ard is whether<br />
the person is an SDP (or SPP) under the statute. 652<br />
646<br />
Id., see also In re Bartholomew, No. A08-0136, 2008 WL 2732303, at *2-3 (Minn. Ct. App.<br />
July 15, 2008) (unpublished) (emphasizing that issue on appeal from indeterminate commitment<br />
is whether person “continued” to meet commitment st<strong>and</strong>ards, <strong>and</strong> that record showed no<br />
change); In re Daniels, No. A03-623, 2003 WL 22707418, at *2-3 (Minn. Ct. App. Nov. 18,<br />
2003) (unpublished) (holding that purpose <strong>of</strong> final commitment hearing is to consider views <strong>of</strong><br />
treatment facility <strong>and</strong> changes in person’s condition, court states same st<strong>and</strong>ard is applied to final<br />
commitment as initial commitment <strong>and</strong> rejects argument that statute provides no st<strong>and</strong>ard for<br />
review hearing); In re Kubec, No. C9-98-520, 1998 WL 566827, at *1 (Minn. Ct. App. Sept. 8,<br />
1998) (unpublished).<br />
647<br />
Linehan II, 557 N.W.2d at 171.<br />
648<br />
In re Pyron, No. A08-638, 2008 WL 4007433, at *4 (Minn. Ct. App. Sept.2, 2008)<br />
(unpublished), citing Linehan II; see also In re Parks, No. A09-126, 2009 WL 2226792, at *7<br />
(Minn. Ct. App. July 28, 2009), review denied (Minn. Oct. 20, 2009) (unpublished); In re<br />
Warbington, No. A08-1058, 2009 WL 511799, at *8 (Minn. Ct. App. March 3, 2009), review<br />
denied (Minn. May 19, 2009) (unpublished).<br />
649<br />
In re Nelson, No. A06-2299, 2007 WL 1747175, at *3-4 (Minn. Ct. App. Jun. 19, 2007)<br />
(unpublished); see also In re Lentz, No. A07-670, 2007 WL 2770417, at *6 (Minn. Ct. App.<br />
Sept. 25, 2007) (unpublished).<br />
650<br />
In re Anderson, No. C8-98-976, 1998 WL 727734, at *1 (Minn. Ct. App. Oct. 20, 1998)<br />
(unpublished).<br />
651<br />
Commit. & Treatment Act R. 23(d).<br />
652<br />
In re Harju, No. A09-1619, 2010 WL 431593, at *5 (Minn. Ct. App. Feb. 9, 2010)<br />
(unpublished), review denied (Minn. Apr. 20, 2010).<br />
87
Where, before the review hearing, the committed person is returned to prison for an<br />
extended period, this is not a material change in the person’s commitment that renders<br />
indeterminate commitment inappropriate. 653 The statute is intended to consider changes in the<br />
person’s psychological condition, not his incarceration status. 654 Of course, not every change in<br />
the person’s condition will render indeterminate commitment inappropriate; it is up to the trial<br />
court to consider whether the change obviates the need for commitment. 655<br />
The court <strong>of</strong> appeals has held that the review hearing is the wrong setting to raise an issue<br />
regarding whether the patient is receiving proper treatment at the Minnesota Sex Offender<br />
Program. 656 Moreover, an initial psychological <strong>and</strong> social history assessment <strong>and</strong> the<br />
opportunity to participate in education <strong>and</strong> recreation therapy are adequate to meet any<br />
constitutional treatment requirement in the period between the initial commitment <strong>and</strong> the review<br />
hearing. 657<br />
The district court may deny the patient’s request for a new second examiner for the<br />
review hearing. 658 This is true even though the commitment rules allow the patient to have the<br />
court appoint an examiner <strong>of</strong> the patient’s choice for the review hearing. 659 Apparently this<br />
means that the court need not allow the patient to choose a different examiner than the one<br />
selected by the patient for the initial hearing.<br />
Under the statute, the review hearing must be held, at latest, within 90 days after the<br />
initial commitment. 660 However, where the person is civilly committed while serving a prison<br />
sentence, the time for holding a review hearing does not begin to run until the person is<br />
transferred to the treatment facility. 661<br />
A review hearing may be continued only with the agreement <strong>of</strong> both parties, <strong>and</strong> then for<br />
no more than a year. 662 The proposed patient cannot insist that the review hearing be continued<br />
653<br />
In re Hopson, No. A06-976, 2006 WL 3199160, at *5 (Minn. Ct. App. Nov. 7, 2006)<br />
(unpublished) (patient returned to prison for 10 years).<br />
654<br />
Id.<br />
655<br />
In re Braylock, No. A06-1053, 2006 WL 3409875, at *5 (Minn. Ct. App. Nov. 28, 2006)<br />
(unpublished) (committed person had begun to admit his <strong>of</strong>fenses).<br />
656<br />
In re Barber, No. A04-2089, 2005 WL 758027, at *4-5 (Minn. Ct. App. Apr. 5, 2005)<br />
(unpublished).<br />
657<br />
Id. at *6.<br />
658<br />
In re Hatton, No. A08-0648, 2008 WL 4301816, at *4 (Minn. Ct. App. Sept. 23, 2008)<br />
(unpublished); In re Anderson, No. C8-98-976, 1998 WL 727734, at *3 (Minn. Ct. App. Oct. 20,<br />
1998) (unpublished).<br />
659<br />
Minn. R. Civ. Commit. 23(c) (2006). At the time <strong>of</strong> the Anderson decision cited in the<br />
previous note, an earlier version <strong>of</strong> the rule contained an identical provision. See Minn. R. Civ.<br />
Commit. 12.03 (1998).<br />
660<br />
Minn. Stat. § 253B.18, subd. 2 (2009).<br />
661<br />
Minn. Stat. § 253B.18, subd. 2(a) (2009); In re Martenies, No. CX-90-1545, 1990 WL<br />
152685 (Minn. Ct. App. Dec. 18, 1990) (unpublished).<br />
662<br />
Minn. Stat. § 253B.18, subd. 2(b)(2) (2009).<br />
88
in order to allow the proposed patient more time to demonstrate progress or to demonstrate his<br />
amenability to treatment <strong>and</strong> avoid indeterminate commitment. 663 The reason for this is to avoid<br />
having a delayed review hearing become a substitute for the statutory discharge procedure. 664<br />
“The underlying policy appears to be that the district court must make its final determination<br />
fairly quickly, at which point the treating experts take over <strong>and</strong> may keep reviewing the person’s<br />
progress until he is ready for a reduction in custody” through the special review board/judicial<br />
appeal panel process. 665 The review hearing is intended to be a “procedural safeguard to catch<br />
any mistakes in the initial hearing”; the Legislature did not expect that a person initially<br />
committed as an SPP or SDP may improve enough before the review hearing so that<br />
commitment is not necessary. 666<br />
W. Appeal.<br />
The commitment statute encourages a single appeal in SPP/SDP cases by allowing the<br />
patient to wait until after the indeterminate commitment <strong>and</strong> then appeal both the initial <strong>and</strong><br />
indeterminate commitment orders. 667 Thus, the patient, when he appeals both orders after the<br />
indeterminate commitment, may raise issues from the initial commitment. 668<br />
In commitment cases, the patient need not raise evidentiary issues in a motion for a new<br />
trial in order to preserve them for appeal. 669<br />
In general, pretrial orders, including pretrial court hold orders, are interlocutory <strong>and</strong><br />
nonappealable. 670 However, issuance <strong>of</strong> a pretrial hold order may be raised before trial pursuant<br />
to “discretionary review” under Minn. R. Civ. App. P. 105.01. 671 An order denying a motion<br />
to dismiss is not immediately appealable unless it is based on lack <strong>of</strong> subject matter jurisdiction<br />
663<br />
In re Harju, No. A09-1619, 2010 WL 431593, at *3-5 (Minn. Ct. App. Feb. 9, 2010), review<br />
denied (Minn. Apr. 20, 2010) (unpublished); In re Cox, No. A08-0910, 2009 WL 113397, at *2<br />
(Minn. Ct. App. Jan. 20, 2009), review denied (Minn. Mar. 31, 2009) (unpublished); In re Reb,<br />
No. C5-97-827, 1997 WL 470154 (Minn. Ct. App. Aug. 19, 1997) (unpublished).<br />
664<br />
In re Harju, No. A09-1619, 2010 WL 431593, at *3-5 (Minn. Ct. App. Feb. 9, 2010), review<br />
denied (Minn. Apr. 20, 2010) (unpublished); In re Reb, No. C5-97-827, 1997 WL 470154 (Minn.<br />
Ct. App. Aug. 19, 1997) (unpublished).<br />
665<br />
In re Harju, No. A09-1619, 2010 WL 431593, at *4 (Minn. Ct. App. Feb. 9, 2010), review<br />
denied (Minn. Apr. 20, 2010) (unpublished).<br />
666<br />
Id.<br />
667<br />
Minn. Stat. § 253B.23, subd. 7 (2009); In re Johnson, No. C5-98-1965, 1999 WL 109608, at<br />
*2 (Minn. Ct. App. Mar. 2, 1999) (unpublished).<br />
668<br />
In re Johnson, 1999 WL 109608, at *2.<br />
669<br />
Irwin, 529 N.W.2d at 371.<br />
670<br />
In re Anderson, No. C2-97-199, 1997 WL 177698 (Minn. Ct. App. Apr. 15, 1997)<br />
(unpublished).<br />
671<br />
In re Daniels, No. A03-623, 2003 WL 22707418, at *4 (Minn. Ct. App. Nov. 18, 2003)<br />
(unpublished).<br />
89
or is certified by the trial court as important <strong>and</strong> doubtful. 672 But the order may be reviewed in<br />
an appeal from the subsequent order for commitment. 673<br />
The appellate review st<strong>and</strong>ard for findings <strong>of</strong> fact is clear: findings will be affirmed if<br />
they are supported by the record as a whole <strong>and</strong> are not clearly erroneous. 674 The appellate court<br />
will not reweigh the evidence. 675 Based upon a review <strong>of</strong> the entire record, the appellate court<br />
will reverse only if “left with a firm <strong>and</strong> definite impression that a mistake has been made.” 676<br />
“Deference is given to the district court’s opportunity to judge the credibility <strong>of</strong> witnesses.” 677<br />
The “clearly erroneous” determination must also take into account the clear-<strong>and</strong>-convincingevidence<br />
st<strong>and</strong>ard, i.e., did the trial court clearly err in finding that the facts were proven by<br />
clear-<strong>and</strong>-convincing evidence? 678 “But a finding <strong>of</strong> fact that is controlled or influenced by<br />
an error <strong>of</strong> law will be set aside.” 679<br />
It does not violate the federal constitution for the state appellate court to determine issues<br />
in the case, even factual issues. 680<br />
Regarding disagreements in expert testimony, the trial court’s evaluation <strong>of</strong> credibility is<br />
particularly important. 681<br />
672<br />
In re Giem, 727 N.W.2d 198, 200 (Minn. Ct. App. 2007).<br />
673<br />
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008)<br />
(unpublished), review denied (Minn. Oct. 21, 2008).<br />
674<br />
Linehan III, 557 N.W.2d at 171; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re<br />
Stone, 711 N.W.2d 831, 836 (Minn. Ct. App. 2006).<br />
675<br />
Linehan III, 557 N.W.2d at 189.<br />
676<br />
In re Knutson, No. A05-1204, 2005 WL 3159930, at *2 (Minn. Ct. App. 2005) (unpublished)<br />
(quoting Roy Matson Truck Lines, Inc., v. Michelin Tire Corp., 277 N.W.2d 361, 361-62 (Minn.<br />
1979)).<br />
677<br />
In re Ramey, 648 N.W.2d 260, 269 (Minn. Ct. App. 2002) (citing In re Knops, 536 N.W.2d<br />
616, 620 (Minn.1995)).<br />
678<br />
In re McClure, No. C2-97-2274, 1998 WL 436878, at *2 (Minn. Ct. App. Aug. 4, 1998)<br />
(unpublished) (citing In re Leebl, 352 N.W.2d 135, 137 (Minn. Ct. App. 1984)).<br />
679<br />
Stone, 711 N.W.2d at 836.<br />
680<br />
Martin v. Mooney, No. 06-1605 DSD/RLE, 2007 WL 1306409, at *15-16 (D. Minn. May 3,<br />
2007) (rejecting argument based on Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979)).<br />
681<br />
Linehan III, 557 N.W.2d at 190; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re<br />
Lentz, No. A07-670, 2007 WL 2770417, at *3, 5 (Minn. Ct. App. Sept. 25, 2007) (unpublished)<br />
(saying, “It was the district court’s prerogative to credit the testimony <strong>of</strong> Dr. Marshall over<br />
Dr. Meyer”); In re Domrose, No. A07-649, 2007 WL 2703154, at *2 (Minn. Ct. App. Sept. 18,<br />
2007) (unpublished) (saying, “But it is the district court’s role to evaluate the testimony <strong>of</strong><br />
experts,” <strong>and</strong> upholding lower court’s determination <strong>of</strong> one examiner’s testimony “to not be<br />
credible <strong>and</strong> persuasive on this issue”); In re Brown, No. A07-593, 2007 WL 2367601, at *2<br />
(Minn. Ct. App. Aug. 21, 2007) (unpublished) (deferring to district court’s assessment that<br />
examiner’s testimony regarding less-restrictive alternatives lacked credibility); In re Black,<br />
No. A06-2262, 2007 WL 1470592, at *5 (Minn. Ct. App. May 22, 2007) (unpublished) (saying,<br />
90
“The decision <strong>of</strong> whether to admit or exclude evidence is within the district court’s<br />
discretion <strong>and</strong> will be reversed only if the court has clearly abused its discretion.” 682 A<br />
commitment will not be reversed based upon the erroneous admission <strong>of</strong> evidence unless the<br />
ruling is shown to be prejudicial. 683 An erroneous ruling will not result in reversal where<br />
properly admitted evidence supports the commitment. 684<br />
However, the st<strong>and</strong>ard <strong>of</strong> review for the determination <strong>of</strong> whether the proposed patient<br />
satisfies the commitment requirements is somewhat confusing. In Linehan I, the supreme<br />
court said:<br />
The question before us is whether the record supports, by clear <strong>and</strong> convincing<br />
evidence, the trial court’s conclusion that appellant meets the [utter-lack-<strong>of</strong>power-to-control<br />
<strong>and</strong> likelihood-<strong>of</strong>-re<strong>of</strong>fense] elements. This is a question <strong>of</strong> law<br />
which we review de novo. 685<br />
However, in Linehan III, the supreme court said:<br />
Linehan also argues that certain findings <strong>of</strong> fact were clearly erroneous. On<br />
appeal, we will not weigh the evidence. We will determine if the evidence as a<br />
whole presents substantial support for the district court’s conclusions. Johnson v.<br />
Noot, 323 N.W.2d 724, 728 (Minn. 1982). 686<br />
The supreme court later explained that the weight to be given to the various Linehan I likelihood<br />
factors “was largely for the district court <strong>and</strong> its assessment <strong>of</strong> expert testimony.” 687 Contrary to<br />
Linehan I’s statement that the issue <strong>of</strong> whether the person meets the likelihood st<strong>and</strong>ard is a legal<br />
issue reviewable de novo, it appears that the supreme court in Linehan III stated that this<br />
determination was “largely for the trial court,” <strong>and</strong> thus reviewed under a more deferential<br />
st<strong>and</strong>ard <strong>of</strong> “substantial support” for the determination.<br />
Since Linehan III, the court <strong>of</strong> appeals has applied varying st<strong>and</strong>ards. In one case, for<br />
example, the court applied a de novo review st<strong>and</strong>ard in overturning the trial court’s decisions<br />
that the evidence had not shown an inability to adequately control behavior <strong>and</strong> that certain<br />
“The district court was in a position to judge the credibility <strong>of</strong> the three experts <strong>and</strong>, in its<br />
discretion, to credit the opinions <strong>of</strong> two <strong>of</strong> the experts over the third”).<br />
682<br />
In re Ramey, 648 N.W.2d 260, 270 (Minn. Ct. App. 2002).<br />
683<br />
In re Fisher, No. A05-579, 2005 WL 2209079, at *11 (Minn. Ct. App. Sept. 13, 2005)<br />
(unpublished).<br />
684<br />
In re Bieganowski, 520 N.W.2d 525, 529 (Minn. Ct. App. 1994).<br />
685<br />
Linehan I, 518 N.W.2d at 613. The court <strong>of</strong> appeal has <strong>of</strong>ten said that the question <strong>of</strong> whether<br />
the person satisfies the statutory st<strong>and</strong>ard is a question <strong>of</strong> law. See, e.g., In re Stone, 711 N.W.2d<br />
831, 836 (Minn. Ct. App. 2006).<br />
686<br />
Linehan III, 557 N.W.2d at 189.<br />
687 Id. at 190.<br />
91
conduct was not “harmful sexual conduct” under the SDP statute. 688 And in another case, the<br />
appellate court considered a record where there were differing expert opinions on whether a<br />
course <strong>of</strong> sexual misconduct was “habitual.” The court said, “While experts can <strong>of</strong>fer opinions,<br />
the district court ultimately decides whether the st<strong>and</strong>ards are met as a matter <strong>of</strong> law.” 689<br />
But in yet another case, the court seemingly applied a different st<strong>and</strong>ard:<br />
[W]here expert testimony provides conflicting evidence <strong>of</strong> a psychopathic<br />
personality [specifically, the utter lack <strong>of</strong> power to control requirement], the trial<br />
court must resolve that question <strong>of</strong> fact. The record contains clear <strong>and</strong> convincing<br />
evidence that appellant lacks the ability to control his sexual impulses. 690<br />
Moreover, despite the supreme court’s holding in Linehan I that the issue <strong>of</strong> whether the<br />
proposed patient satisfies the commitment requirements is a question <strong>of</strong> law, after Linehan I the<br />
court <strong>of</strong> appeals reversed a district court’s conclusion that the appellant had an utter lack <strong>of</strong><br />
power to control, apparently because all <strong>of</strong> the experts who had addressed that issue had<br />
concluded that the person did not meet the requirement. 691 That decision is difficult to reconcile<br />
with an earlier supreme court decision where the two examiners had both found that the<br />
proposed patient met the commitment requirements for commitment as a PP. The trial judge<br />
disagreed, but nonetheless committed the patient, believing that he was “outvoted” <strong>and</strong> therefore<br />
bound by the decisions <strong>of</strong> the two examiners. The supreme court overturned the commitment,<br />
saying:<br />
We think it clear that the legislature intended the probate judge to have the<br />
exclusive authority to determine whether the patient was a psychopathic<br />
personality <strong>and</strong> that the examining doctors functioned only as expert witnesses<br />
rather than as coequal members <strong>of</strong> a judicial tribunal. 692<br />
In a more recent case, the court <strong>of</strong> appeals upheld a district court’s determination that the<br />
proposed patient had an “utter lack <strong>of</strong> power to control,” even where both examiners concluded<br />
the person did not meet that requirement. 693 But in a different case, the appellate court<br />
688<br />
In re Martin, 661 N.W.2d 632, 638 (Minn. Ct. App. 2003); see also In re Gleason, No. C2-97-<br />
2194, 1998 WL 218223 (Minn. Ct. App. May 5, 1998) (unpublished); In re Linehan, 544<br />
N.W.2d 308, 312 (Minn. Ct. App. 1996), aff’d, 557 N.W.2d 171, 185 (Minn. 1996), vacated <strong>and</strong><br />
rem<strong>and</strong>ed, 522 U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).<br />
689<br />
In re Larkin, No. C9-99-382, 1999 WL 508655, at *1 (Minn. Ct. App. July 20, 1999)<br />
(unpublished) (emphasis added).<br />
690<br />
In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *8 (Minn. Ct. App. Dec. 15, 1999)<br />
(unpublished) (emphasis added, citations omitted).<br />
691<br />
In re Mentzos, No. C3-95-2331, 1996 WL 81721, at *4-5 (Minn. Ct. App. Feb. 27, 1996)<br />
(unpublished); but see In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn. Ct. App.<br />
Aug. 28, 2007) (unpublished).<br />
692<br />
Keiser v. Sheppard, 194 N.W.2d 286, 288 (Minn. 1972).<br />
693<br />
In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn. Ct. App. Aug. 28, 2007)<br />
(unpublished).<br />
92
overturned such a district court decision where the court failed to adequately explain why it<br />
rejected the examiners’ opinions. 694<br />
Both personal <strong>and</strong> subject matter jurisdiction are questions <strong>of</strong> law, reviewed de<br />
novo. 695<br />
The court <strong>of</strong> appeals will not reverse the commitment on technical procedural grounds,<br />
where no prejudice has been shown. 696 The appellate court can disregard some incidents <strong>of</strong><br />
sexual misconduct found by the trial court, but nonetheless determine that the remaining<br />
incidents are sufficient to satisfy the “course” requirement. 697<br />
Where a legal issue has been decided in a previous appeal in the same case, “under the<br />
law-<strong>of</strong>-the-case doctrine, courts do not typically review prior decisions as a matter <strong>of</strong> policy, but<br />
may do so if there has been a change in law or a change in evidence that makes reconsideration<br />
necessary.” 698 Where the appellate court rem<strong>and</strong>s a case on issues relating only to the review<br />
hearing <strong>and</strong> indeterminate commitment under Minn. Stat. § 253B.18, subd. 2, the person may<br />
not, in a subsequent appeal, raise issues relating to the initial commitment. 699<br />
The court <strong>of</strong> appeals has hesitated to apply the law-<strong>of</strong>-the-case doctrine to the initial<br />
commitment determination when considering an appeal from the later, indeterminate,<br />
commitment. 700 But the court rejected arguments that were the same as ones made in the appeal<br />
<strong>of</strong> the initial commitment. 701<br />
Failure to raise an issue in the district court, even a constitutional issue, constitutes a<br />
waiver <strong>of</strong> that issue on appeal. 702 However, the special nature <strong>of</strong> commitment <strong>and</strong> the<br />
694 In re Buckner, No. A09-1420, 2009 WL 4574169, at *2 (Minn. Ct. App. Dec. 8, 2009)<br />
(unpublished)<br />
695 In re Lonergan, No. A08-0394, 2008 WL 2967088, at *4 (Minn. Ct. App. Aug. 5, 2008),<br />
review denied (Minn. Oct. 21, 2008) (unpublished).<br />
696 In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *2 (Minn. Ct. App. Dec. 15, 1999)<br />
(unpublished); In re Schultz, No. CX-99-1296, 1999 WL 1100941, at *2 (Minn. Ct. App. Nov.<br />
30, 1999) (unpublished).<br />
697 In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)<br />
(unpublished).<br />
698<br />
In re Martin, No. A04-1634, 2005 WL 354088, at *2, 5 (Minn. Ct. App. Feb. 15, 2005)<br />
(unpublished) (refusing to re-examine issue).<br />
699<br />
In re Fisher, No. A05-579, 2005 WL 2209079, at *2 (Minn. Ct. App. Sept. 13, 2005)<br />
(unpublished).<br />
700<br />
In re Bartholomew, No. A08-0136, 2008 WL 2732303, at *2 (Minn. Ct. App. July 15, 2008)<br />
(unpublished).<br />
701 Id.<br />
702 In re Tolbert, No. A08-0395, 2008 WL 3898457, at *5 (Minn. Ct. App. Aug. 26, 2008)<br />
(unpublished); In re Fageroos, No. A06-1947, 2007 WL 509748, at *5 (Minn. Ct. App. Feb. 20,<br />
2007) (unpublished); In re Hoium, No. C2-98-469, 1998 WL 531814, at *5 (Minn. Ct. App.<br />
Aug. 25, 1998) (unpublished).<br />
93
deprivation <strong>of</strong> liberty involved give the appellate court broader-than-normal discretion to<br />
consider issues not raised in the trial court. 703 The appellant has also waived the issue where he<br />
did raise it in the district court, but not until after the commitment hearing <strong>and</strong> decision. 704<br />
Indeed, the court <strong>of</strong> appeals has held in an unpublished decision that, under Minn. R. Civ. P. 12,<br />
the commitment respondent must raise any defenses to the commitment petition, including<br />
arguments that the commitment is unconstitutional, within 20 days after service <strong>of</strong> the<br />
commitment petition or those defenses are waived. 705<br />
Where the appellant fails to adequately argue or brief an issue on appeal, it is<br />
waived. 706 It is not sufficient that the appellant refers the appellate court to arguments contained<br />
in the trial court transcript. 707 But even where the issue is waived, the court may consider it “in<br />
the interest <strong>of</strong> justice.” 708<br />
Although the appellate rules require a party challenging the constitutionality <strong>of</strong> a statute<br />
to give notice to the Attorney General, the rule is not an absolute bar to considering the<br />
constitutional issue. 709<br />
The appellate record in the case consists <strong>of</strong> the papers filed in the district court, the<br />
exhibits <strong>and</strong> the transcript. Where a party’s appellate brief refers to matters outside the record,<br />
those portions <strong>of</strong> the brief will be stricken. 710<br />
703 In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at *5 (Minn. Ct. App. June 20,<br />
2000) (unpublished).<br />
704 In re Lunsford, No. A09-0335, 2009 WL 2747761, at *2 (Minn. Ct. App. Sept. 1, 2009)<br />
(unpublished).<br />
705 Id.<br />
706 In re Robb, 622 N.W.2d 564, 574 (Minn. Ct. App. 2001); Irwin, 529 N.W.2d at 373; In re<br />
Harrison, No. A07-1181, 2007 WL 4305377, at *6 (Minn. Ct. App. Dec. 11, 2007)<br />
(unpublished); In re Mosby, No. A07-755, 2007 WL 2781806, at *4 (Minn. Ct. App. Sept. 25,<br />
2007) (unpublished); In re Semler, No. A06-2213, 2007 WL 969081, at *5 (Minn. Ct. App. Apr.<br />
3, 2007) (unpublished); In re Hill, No. A05-2438, 2006 WL 1390587, at *2 (Minn. Ct. App.<br />
May 23, 2006) (unpublished); In re Sargent, No. A04-1767, 2005 WL 406345, at *4 (Minn. Ct.<br />
App. Feb. 22, 2005) (unpublished); In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at<br />
*6 (Minn. Ct. App. June 20, 2000) (unpublished).<br />
707 Bieganowski, 520 N.W.2d at 529; In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381,<br />
at *6 (Minn. Ct. App. June 20, 2000) (unpublished).<br />
708 In re Harrison, No. A07-1181, 2007 WL 4305377, at *6 (Minn. Ct. App. Dec. 11, 2007)<br />
(unpublished); In re Mosby, No. A07-755, 2007 WL 2781806, at *4 (Minn. Ct. App. Sept. 25,<br />
2007) (unpublished).<br />
709 In re Brewer, No. A08-2264, 2009 WL 1182608, at *1 (Minn. Ct. App. May 5, 2009)<br />
(unpublished).<br />
710 In re Hill, No. A05-2438, 2006 WL 1390587, at *2 (Minn. Ct. App. May 23, 2006)<br />
(unpublished).<br />
94
The court <strong>of</strong> appeals, <strong>of</strong> course, may not overturn supreme court precedent. 711<br />
Where the committed person on appeal claims ineffective assistance <strong>of</strong> counsel, the<br />
st<strong>and</strong>ard applied to determine adequacy <strong>of</strong> counsel is the same as that applied in criminal<br />
cases. 712 The person must show that the attorney’s representation fell below an objective<br />
st<strong>and</strong>ard <strong>of</strong> reasonableness <strong>and</strong> that there is a reasonable probability that the pr<strong>of</strong>essional errors<br />
changed the result <strong>of</strong> the case. 713 There is a strong presumption that representation was adequate<br />
<strong>and</strong> the court does not second guess matters <strong>of</strong> trial strategy. 714 The attorney’s choice <strong>of</strong><br />
witnesses to call at trial 715 <strong>and</strong> refusal to assert on appeal all the issues the client wishes 716 fall<br />
within the area <strong>of</strong> strategy that generally will not be reviewed. A commitment respondent has<br />
the right to a court-appointed attorney, but not an unbridled right to have the court provide the<br />
attorney the respondent would select. 717 The appellate court reviews such claims de novo. 718<br />
X. State Habeas Corpus.<br />
In addition to appeal, a committed person may use state habeas corpus to challenge his<br />
commitment. 719 However, the grounds that may be raised in support <strong>of</strong> habeas are limited:<br />
“[T]he only issues the district court will consider are constitutional <strong>and</strong> jurisdictional<br />
711<br />
In re Webber, No. A08-1903, 2009 WL 1119239, at *8 (Minn. Ct. App. Apr. 28, 2009),<br />
review denied (Minn. June 30, 2009) (unpublished) (citing State v. Ward, 580 N.W.2d 67, 74<br />
(Minn. Ct. App. 1998); In re Braylock, No. A06-1053, 2006 WL 3409875, at *4 (Minn. Ct. App.<br />
Nov. 28, 2006) (unpublished) (same).<br />
712<br />
In re Eggert, No. A09-0502, 2009 WL 2928775 at *6 (Minn. Ct. App. Sept. 15, 2009)<br />
(unpublished); In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at *8 (Minn. Ct. App.<br />
June 20, 2000) (unpublished).<br />
713<br />
Id.<br />
714<br />
In re Brewer, No. A08-2264, 2009 WL 1182608, at *2 (Minn. Ct. App. May 5, 2009)<br />
(unpublished); In re Larson, No. A08-1486, 2009 WL 1049171, at *7 (Minn. Ct. App. Apr. 21,<br />
2009), review denied (Minn. June 30, 2009) (unpublished); In re Poole, Nos. C4-00-85, C8-00-<br />
171, 2000 WL 781381, at *8 (Minn. Ct. App. June 20, 2000) (unpublished).<br />
715<br />
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *5 (Minn. Ct. App. Aug. 5, 2008),<br />
review denied (Minn. Oct. 21, 2008) (unpublished); In re Brinkman, No. A08-1077, 2008 WL<br />
5058637, at *10 (Minn. Ct. App. Dec. 2, 2008) (unpublished).<br />
716<br />
In re Brewer, No. A08-2264, 2009 WL 1182608, at *3 (Minn. Ct. App. May 5, 2009)<br />
(unpublished).<br />
717<br />
In re Lonergan, No. A08-0394, 2008 WL 2967088,at *5 (Minn. Ct. App. Aug. 5, 2008),<br />
review denied (Minn. Oct. 21, 2008) (unpublished).<br />
718<br />
In re Eggert, No. A09-0502, 2009 WL 2928775 at *6 (Minn. Ct. App. Sept. 15, 2009)<br />
(unpublished), review denied (Minn. Nov. 17, 2009).<br />
719<br />
Joelson v. O’Keefe, 594 N.W.2d 905, 908 (Minn. Ct. App. 1999) (citing State ex rel.<br />
Anderson v. U.S. Veterans Hosp., 128 N.W.2d 710, 714 (Minn. 1964), <strong>and</strong> Minn. Stat.<br />
§ 253B.23, subd. 5 (2009)).<br />
95
challenges.” 720 Habeas may not be used to challenge mere errors or irregularities in the<br />
proceedings <strong>of</strong> a competent court having jurisdiction. 721<br />
(Federal habeas corpus is also available to raise federal constitutional or statutory<br />
grounds to challenge confinement pursuant to state civil commitment. However, the substantive<br />
<strong>and</strong> procedural limitations on federal habeas corpus will not be discussed here.)<br />
The court in a state habeas case will not address issues that have been addressed in an<br />
appeal from the commitment. 722 This bar applies even if the habeas petitioner raises different<br />
arguments in support <strong>of</strong> the claim or seeks to elaborate on arguments previously raised. 723 The<br />
bar applies where the person has made essentially the same arguments in seeking relief under the<br />
statutory discharge procedures. 724<br />
Similarly, if a claim has been raised <strong>and</strong> rejected in a previous habeas proceeding, but the<br />
person did not appeal that decision, then the person is barred from raising the claim in a<br />
subsequent state habeas proceeding. 725<br />
The state appellate court has issued conflicting unpublished decisions regarding whether<br />
a committed person may raise a claim in a habeas petition even though he failed to raise it in an<br />
appeal from his commitment. In 2006, the court held that a habeas petitioner is generally barred<br />
from raising a claim he could have raised in the direct appeal from his commitment. 726 The court<br />
said the habeas petitioner could do so only in the exceptional circumstances recognized in the<br />
criminal context for persons seeking post-conviction relief. 727 Similarly, in a 2008 decision, the<br />
appellate court held that a habeas petitioner was barred from challenging whether his mental<br />
disorder was sufficient to support commitment, where his appeal from his commitment had been<br />
dismissed as untimely. The court said, “[W]e conclude that [the habeas petitioner’s] failure to<br />
timely appeal his commitment is a procedural bar to his current argument.” 728 In two 2004<br />
decisions, however, the appellate court declined to apply these limitations in the civil<br />
720 Joelson, 594 N.W.2d at 908 (citing Anderson, 128 N.W.2d at 714).<br />
721 In re Bailey, No. A05-1919, 2006 WL 9622, at *1 (Minn. Ct. App. Jan. 3, 2006)<br />
(unpublished).<br />
722<br />
Joelson, 594 N.W.2d at 908, 909.<br />
723<br />
Duvall v. Doth, No. C2-96-1262, 1996 WL 636245, at *2 (Minn. Ct. App. Nov. 5, 1996)<br />
(unpublished).<br />
724<br />
Kruger v Goodno, No. A05-2368, 2006 WL 620749, at *1-2 (Minn. Ct. App. Mar. 14, 2006)<br />
(unpublished).<br />
725 In re Bailey, No. A05-1919, 2006 WL 9622, at *2 (Minn. Ct. App. Jan. 3, 2006)<br />
(unpublished); Larsen, 2004 WL 1049844, at *4.<br />
726 Ivey v Mooney, No. A05-2087, 2006 WL 852152, at *2 (Minn. Ct. App. Apr. 4, 2006)<br />
(unpublished).<br />
727 Id. (citing Sessions v. State, 666 N.W.2d 718, 721 (Minn. 2003); Fox v. State, 474 N.W.2d<br />
821, 822 (Minn. 1991); Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995)).<br />
728 Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475, at *4 (Minn. Ct. App. July 1, 2008)<br />
(unpublished), review denied (Minn. Sept. 23, 2008).<br />
96
commitment habeas corpus context, allowing the habeas petitioner to raise issues he could have,<br />
but did not, raise in his direct appeal. 729<br />
A claim that the person’s current condition entitles him to release may not be raised by a<br />
habeas petition, but instead must be raised through the statutory discharge procedure. 730<br />
Where the facts are undisputed, the appellate court reviews the habeas claims de novo. 731<br />
V. CONSTITUTIONAL CHALLENGES.<br />
A. PP Law.<br />
1. Pearson v. Probate Court—vagueness <strong>and</strong> equal protection.<br />
The psychopathic personality law (now called the “sexual psychopathic personality” or<br />
“SPP” law) was enacted in 1939. 732 That law defined the term “psychopathic personality” as<br />
the existence in any person <strong>of</strong> such conditions <strong>of</strong> emotional instability, or<br />
impulsiveness <strong>of</strong> behavior, or lack <strong>of</strong> customary st<strong>and</strong>ards <strong>of</strong> good judgment, or<br />
failure to appreciate the consequences <strong>of</strong> personal acts, or a combination <strong>of</strong> any<br />
such conditions, as to render such person irresponsible for personal conduct with<br />
respect to sexual matters <strong>and</strong> thereby dangerous to other persons. 733<br />
Almost immediately upon the enactment <strong>of</strong> the statute, in State ex rel. Pearson v. Probate<br />
Court, 734 a proposed patient challenged the law as being unconstitutionally vague <strong>and</strong> on other<br />
grounds. Responding to the vagueness challenge, the Minnesota Supreme Court gave the<br />
statute a narrower interpretation, holding that the statute would apply only to<br />
those persons who, by a habitual course <strong>of</strong> misconduct in sexual matters, have<br />
evidenced an utter lack <strong>of</strong> power to control their sexual impulses <strong>and</strong> who, as a<br />
result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the<br />
objects <strong>of</strong> their uncontrolled <strong>and</strong> uncontrollable desire. 735<br />
729 McDeid v. Mooney, No. A04-36, 2004 WL 728133, at *2 (Minn. Ct. App. Apr. 6, 2004)<br />
(unpublished) (holding habeas petition not barred where person did not appeal); In re Larsen,<br />
No. A03-1410, 2004 WL 1049844, at *4 (Minn. Ct. App. May 11, 2004) (unpublished) (stating<br />
habeas petition not barred where person appealed, but did not raise issue).<br />
730 Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475, at *5 (Minn. Ct. App. July 1, 2008)<br />
(unpublished), review denied (Minn. Sept. 23, 2008).<br />
731 Joelson, 594 N.W.2d at 908.<br />
732 1939 Minn. Laws ch. 369, § 1.<br />
733 Id.<br />
734 State ex rel. Pearson v. Probate Court, 287 N.W. 297 (Minn. 1939), aff’d, 309 U.S. 270<br />
(1940).<br />
735 Id. at 302.<br />
97
The court specifically stated that “it does not necessarily follow” that the PP disorder as<br />
articulated by the court “must excuse [committed persons] from criminal conduct occurring in<br />
the past.” 736<br />
On appeal, the United States Supreme Court unanimously affirmed the constitutionality<br />
<strong>of</strong> the statute. 737 The high Court held that, as construed by the Minnesota Supreme Court, the<br />
statute was not unconstitutionally vague or indefinite. 738 Rejecting an equal protection<br />
challenge (not mentioned in the state court’s opinion), the Supreme Court held that “the<br />
legislature is free to recognize degrees <strong>of</strong> harm, <strong>and</strong> it may confine its restrictions to those<br />
classes <strong>of</strong> cases where the need is deemed to be the clearest.” 739<br />
2. In re Blodgett—substantive due process <strong>and</strong> equal protection.<br />
After few commitments in the 1970s <strong>and</strong> 1980s, commitments under the PP statute<br />
increased beginning in 1991, in response to several rape/murders committed mainly by persons<br />
recently released from prison. 740 That year, the Department <strong>of</strong> Corrections began screening sex<br />
<strong>of</strong>fenders being released from prison <strong>and</strong> referring appropriate cases to county attorneys to<br />
consider possible civil commitment under the PP law. 741<br />
Several persons committed after 1991 challenged the constitutionality <strong>of</strong> the law in their<br />
commitment cases. The first <strong>of</strong> these cases to reach the appellate courts was In re Blodgett. 742<br />
Blodgett challenged the PP statute on vagueness, double jeopardy, substantive due process<br />
<strong>and</strong> equal protection grounds, <strong>and</strong> claimed that his commitment violated the terms <strong>of</strong> his<br />
prior criminal plea bargain. The court <strong>of</strong> appeals rejected all <strong>of</strong> these claims.<br />
At Blodgett’s request, the Minnesota Supreme Court granted review <strong>of</strong> the substantive<br />
due process <strong>and</strong> equal protection claims only. In a 4-3 decision, the court upheld the<br />
constitutionality <strong>of</strong> the statute.<br />
Considering Blodgett’s due process argument, the court held that the statute served a<br />
compelling government interest—protecting the public from persons who have an uncontrollable<br />
impulse to sexually assault. 743 The court rejected the argument that the PP statute is inconsistent<br />
with the United States Supreme Court’s decision in Foucha v. Louisiana. 744 The state court<br />
736<br />
Id. at 303.<br />
737<br />
Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S. Ct. 523 (1940).<br />
738<br />
Id. at 274, 60 S. Ct. at 526.<br />
739<br />
Id. at 275, 60 S. Ct. at 526.<br />
740<br />
Office <strong>of</strong> the Legislative Auditor, <strong>Psychopathic</strong> Personality <strong>Commitment</strong> Law at 7-8 (1994).<br />
741<br />
Id. at 6, 8. Along with the increased emphasis on civil commitment, the Legislature also<br />
increased criminal sentences for dangerous sex <strong>of</strong>fenders in the 1989 legislative session, <strong>and</strong><br />
again in 1992. Id.<br />
742<br />
In re Blodgett, 490 N.W.2d 638 (Minn. Ct. App. 1992), aff’d, 510 N.W.2d 910 (Minn. 1994),<br />
cert. denied, 513 U.S. 849 (1994).<br />
743<br />
Blodgett, 510 N.W.2d at 914.<br />
744<br />
Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780 (1992).<br />
98
concluded that Foucha did not hold that typical mental illness is the only mental disorder that<br />
may support civil commitment. 745 The court stated that the disorder identified in the PP statute<br />
<strong>and</strong> Pearson “is an identifiable <strong>and</strong> documentable violent sexually deviant condition or<br />
disorder.” 746<br />
The supreme court recognized a disagreement among treatment pr<strong>of</strong>essionals as to<br />
whether the mental disorders exhibited by persons committed as PP are treatable, but noted that<br />
there are many treatment programs for persons whose mental disorders render them sexually<br />
dangerous. 747 The court observed, “[E]ven when treatment is problematic, <strong>and</strong> it <strong>of</strong>ten is, the<br />
state’s interest in the safety <strong>of</strong> others is no less legitimate <strong>and</strong> compelling. So long as civil<br />
commitment is programmed to provide treatment <strong>and</strong> periodic review, due process is<br />
provided.” 748<br />
For the same reasons, the court also rejected Blodgett’s equal protection claim, applying<br />
“heightened” (i.e., intermediate) scrutiny analysis. 749<br />
The court acknowledged that there are other approaches to dealing with mentally<br />
disordered sexual predators. Such persons may constitutionally be given long or indeterminate<br />
criminal sentences, instead <strong>of</strong> civil commitments. 750 However, the court concluded, “where there<br />
are no definitive answers, it would seem a state legislature should be allowed, constitutionally, to<br />
choose either or both alternatives for dealing with the sexual predator.” 751<br />
Three justices dissented. They asserted that civil commitment <strong>of</strong> sexual predators<br />
amounts to a “system <strong>of</strong> wholesale preventive detention, a concept foreign to our<br />
jurisprudence.” 752<br />
Blodgett petitioned for certiorari to the United States Supreme Court, which denied<br />
review. 753<br />
3. Validity <strong>of</strong> SPP law following Kansas v. Crane.<br />
As explained in section V.B.5., below, in 2002 the U.S. Supreme Court held in Kansas v.<br />
Crane that, to civilly commit a person as sexually dangerous, the Constitution requires that<br />
“there must be pro<strong>of</strong> <strong>of</strong> serious difficulty in controlling behavior.” 754 And, as explained in<br />
745<br />
Blodgett, 510 N.W.2d at 914-15.<br />
746<br />
Id. at 915.<br />
747<br />
Id. at 916 <strong>and</strong> n.12.<br />
748<br />
Id. at 916.<br />
749<br />
Id. at 917, citing State v. Russell, 477 N.W.2d 886 (Minn. 1991), for “heightened scrutiny”<br />
st<strong>and</strong>ard.<br />
750<br />
Id.<br />
751<br />
Blodgett, 510 N.W.2d at 918.<br />
752<br />
Id. (Wahl dissenting).<br />
753<br />
513 U.S. 849 (1994).<br />
754<br />
Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002).<br />
99
section V.B.6., after the Crane decision the courts have held that the SDP law’s “does not allow<br />
them to adequately control” st<strong>and</strong>ard satisfies the Crane “serious difficulty in controlling”<br />
requirement. In In re Benson in 2003, the state court <strong>of</strong> appeals drew the obvious conclusion that<br />
the SPP law, with its “utter lack <strong>of</strong> power to control requirement,” “follows the requirements <strong>of</strong><br />
Crane even more closely than commitment under the SDP Act.” 755 Indeed, the high Court in<br />
Crane expressly held that the Constitution does not require a showing <strong>of</strong> complete inability to<br />
control. 756<br />
4. Double Jeopardy Challenges.<br />
In the court <strong>of</strong> appeals, Blodgett argued that his civil commitment constituted double<br />
jeopardy, because it was based upon sexual acts for which he had been charged <strong>and</strong> convicted.<br />
The court <strong>of</strong> appeals rejected Blodgett’s double jeopardy challenge <strong>and</strong> Blodgett did not raise the<br />
issue in his appeal to the supreme court. 757 However, previously, in In re Enebak 758 in 1978, the<br />
supreme court had held that a PP commitment was not criminal in nature, <strong>and</strong> therefore did not<br />
constitute double jeopardy. After the Blodgett decision, in Call v. Gomez, 759 the supreme court<br />
again considered <strong>and</strong> rejected a double jeopardy claim to a PP commitment, saying:<br />
[O]ur decision in Blodgett clearly establishes that commitment under the<br />
psychopathic personality statute is remedial <strong>and</strong> does not constitute double<br />
jeopardy because it is for treatment purposes <strong>and</strong> is not for purposes <strong>of</strong><br />
preventative detention. 760<br />
B. SDP Law.<br />
1. Linehan III—substantive due process, equal protection, ex post facto<br />
<strong>and</strong> double jeopardy.<br />
As explained earlier, Dennis Linehan’s PP commitment was overturned by the state<br />
supreme court in June 1994, based on the court’s holding that the county had not proved that<br />
Linehan had an utter lack <strong>of</strong> power to control his sexual impulses. 761 After the SDP law was<br />
enacted in August 1994, the county sought Linehan’s commitment under that law. The trial<br />
court rejected Linehan’s claim that the law was unconstitutional <strong>and</strong> found that he met the<br />
commitment criteria; the court <strong>of</strong> appeals affirmed. 762 The Minnesota Supreme Court then<br />
755<br />
In re Benson, No. C4-02-2004, 2003 WL 21500189, at *2 (Minn. Ct. App. July 1, 2003)<br />
(unpublished).<br />
756<br />
Crane, 534 U.S. at 411-12, 122 S. Ct. at 870.<br />
757<br />
In re Blodgett, 490 N.W.2d at 646-47.<br />
758<br />
In re Enebak, 272 N.W.2d 27, 30 (Minn. 1978).<br />
759<br />
Call v. Gomez, 535 N.W.2d 312 (Minn. 1995), cert. denied, 519 U.S. 1094<br />
(1997).<br />
760<br />
Id. at 319-20.<br />
761<br />
Linehan I, 518 N.W.2d 609.<br />
762<br />
In re Linehan, 544 N.W.2d 308 (Minn. Ct. App. 1996), aff’d, 557 N.W.2d 171, 185 (Minn.<br />
1996), vacated <strong>and</strong> rem<strong>and</strong>ed, 522 U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn.<br />
1999).<br />
100
granted review <strong>and</strong>, in December 1996, issued its decision upholding the constitutionality <strong>of</strong> the<br />
statute <strong>and</strong> Linehan’s commitment by a 4-2 margin. 763<br />
The court first addressed Linehan’s several substantive due process arguments, which<br />
the court summarized:<br />
Linehan’s primary contention is that his SDP Act commitment is not<br />
narrowly drawn to serve the state’s interests because criminal sanctions are<br />
available to deter him from <strong>and</strong>, if necessary, to punish him for any future harmful<br />
sexual conduct. He asserts that he is presently competent to st<strong>and</strong> trial, able to<br />
control his sexual impulses, not mentally ill, <strong>and</strong> that he has not been acquitted <strong>of</strong><br />
a crime on the basis <strong>of</strong> insanity. Linehan further contends that an antisocial<br />
personality disorder is an insufficient basis for the commitment <strong>of</strong> dangerous<br />
persons, <strong>and</strong> that an utter inability to control sexual impulses is required in order<br />
to satisfy the narrow tailoring dem<strong>and</strong> <strong>of</strong> strict scrutiny. 764<br />
Rejecting these arguments, the court held that the utter-lack-<strong>of</strong>-power-to-control st<strong>and</strong>ard<br />
<strong>of</strong> the PP law is not constitutionally required for commitment. The court observed that Blodgett<br />
had held that civil commitment <strong>of</strong> persons who present a serious sexual danger is justified by the<br />
state’s “compelling interest in protecting the public from sexual assault.” 765 The court then held<br />
that the mental disorder element <strong>of</strong> the SDP law is even more narrowly tailored to serve the<br />
State’s compelling interest than the st<strong>and</strong>ard <strong>of</strong> the PP law: “[T]he SDP Act is an attempt to<br />
protect the public by treating sexual predators even more dangerous than those reached by the PP<br />
Act—the mentally disordered who retain enough control to ‘plan, wait, <strong>and</strong> delay the indulgence<br />
<strong>of</strong> their maladies until presented with a higher probability <strong>of</strong> success.’” 766 The court also<br />
identified the purpose <strong>of</strong> the mental disorder requirement in the law: “[T]he mental disorder<br />
requirement in the SDP Act serves the State’s interest in public safety by aiding the prediction <strong>of</strong><br />
dangerousness.” 767<br />
The court rejected the reason advanced by Linehan to support his argument that utter lack<br />
<strong>of</strong> power to control was constitutionally required. Linehan had argued that the utter-lack-<strong>of</strong>power-to-control<br />
element was necessary to identify persons who lack criminal responsibility, <strong>and</strong><br />
are therefore “unreachable” by the criminal law. He asserted that a public-protection<br />
commitment may be used only for persons who cannot be criminally punished for their acts. 768<br />
The court rejected that argument, noting that it was expressly rejected in Pearson, the case that<br />
763 In re Linehan (Linehan III), 557 N.W.2d 171, vacated <strong>and</strong> rem<strong>and</strong>ed, 522 U.S. 1011 (1997),<br />
aff’d as modified, 594 N.W.2d 867 (Minn. 1999).<br />
764 Id. at 180.<br />
765<br />
Id. at 181.<br />
766<br />
Id. at 182 (citation omitted).<br />
767<br />
Id.<br />
768<br />
Id. at 183.<br />
101
first articulated the utter-lack-<strong>of</strong>-power-to-control st<strong>and</strong>ard. 769 The court also observed that<br />
Linehan’s criminal responsibility justification was precluded by Blodgett. 770<br />
In addition, the court rejected Linehan’s argument that an antisocial personality disorder<br />
(or “APD”) is constitutionally insufficient to meet the mental disorder requirement for<br />
commitment. The court said Linehan’s APD diagnosis did not simply characterize his past<br />
antisocial conduct, but rather was based significantly on his disordered mental processes,<br />
specifically his lack <strong>of</strong> empathy <strong>and</strong> remorse. 771 The Court noted that the purpose <strong>of</strong> the APD<br />
diagnosis is “to identify an underlying mental disorder that accounts for the behavior,” <strong>and</strong> that it<br />
did so in Linehan’s case. 772<br />
The court also determined that Linehan’s equal protection claim lacked merit. Linehan<br />
asserted that the SDP law unconstitutionally discriminates among persons who present a sexual<br />
danger, based upon whether they have mental disorders. The court held that limiting the<br />
application <strong>of</strong> the statute to persons with mental disorders serves the State’s interest in predicting<br />
which persons will engage in harmful conduct, as well as the State’s interest in providing<br />
treatment to sexual predators. 773<br />
Finally, the court rejected Linehan’s ex post facto <strong>and</strong> double jeopardy claims, holding<br />
that commitment under the law is not for punitive purposes. 774 The Court noted that Minnesota<br />
has made a substantial commitment to treat persons committed under the act, both in statute <strong>and</strong><br />
by actual implementation <strong>of</strong> a treatment program. The Court said the “purpose <strong>and</strong> effect <strong>of</strong> the<br />
SDP Act is therefore predominantly remedial, not punitive.” 775<br />
2. U.S. Supreme Court decision in Kansas v. Hendricks—substantive due<br />
process, ex post facto <strong>and</strong> double jeopardy.<br />
Linehan petitioned for certiorari to the United States Supreme Court. In June 1997, while<br />
Linehan’s certiorari petition was pending, the United States Supreme Court issued its decision in<br />
Kansas v. Hendricks. 776 By a 5-4 margin, the Court upheld the commitment <strong>of</strong> Leroy Hendricks,<br />
who had been civilly committed under Kansas’s “<strong>Sexual</strong>ly Violent Predator Act.” That Act<br />
defined a “sexually violent predator” as<br />
769<br />
Linehan III, 557 N.W.2d at 183.<br />
770<br />
Id.<br />
771<br />
Id. at 185.<br />
772<br />
Id. (emphasis in original).<br />
773<br />
Id. at 186-87.<br />
774<br />
Id. at 187-88.<br />
775<br />
Linehan III, 557 N.W.2d at 188.<br />
776<br />
Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997).<br />
102
any person who has been convicted <strong>of</strong> or charged with a sexually violent <strong>of</strong>fense<br />
<strong>and</strong> who suffers from a mental abnormality or personality disorder which makes<br />
the person likely to engage in the predatory acts <strong>of</strong> sexual violence. 777<br />
Hendricks was civilly committed at the completion <strong>of</strong> his prison term for sexually<br />
molesting two young boys. He had a long history <strong>of</strong> sexually molesting children. During the<br />
civil commitment proceedings, Hendricks told an examiner that he “[could]n’t control the urge”<br />
to molest children. 778 The experts diagnosed Hendricks with the mental disorder <strong>of</strong> pedophilia.<br />
A jury found that Hendricks met the requirements <strong>of</strong> the Kansas law, <strong>and</strong> he was civilly<br />
committed to a state treatment program.<br />
The Kansas Supreme Court reversed Hendricks’ commitment. That court held that the<br />
commitment violated substantive due process because the law did not require, <strong>and</strong> Hendricks’<br />
pedophilia did not constitute, a “mental illness.” 779 Because it concluded that Hendricks’<br />
commitment violated substantive due process, the majority <strong>of</strong> the Kansas court did not reach his<br />
double jeopardy <strong>and</strong> ex post facto arguments.<br />
The United States Supreme Court, however, granted certiorari to review both the<br />
substantive due process <strong>and</strong> the double jeopardy/ex post facto claims. The high Court rejected<br />
all <strong>of</strong> these claims <strong>and</strong> reversed the Kansas Supreme Court’s decision.<br />
The Supreme Court first addressed Hendricks’ claim that substantive due process<br />
requires that civil commitment be based on a “mental illness” as that term may be defined by the<br />
psychiatric pr<strong>of</strong>ession. The Court said: “Contrary to Hendricks’ assertion, the term ‘mental<br />
illness’ is devoid <strong>of</strong> any talismanic significance.” 780 Instead, the Court observed: “[W]e have<br />
traditionally left to legislators the task <strong>of</strong> defining terms <strong>of</strong> a medical nature that have legal<br />
significance.” 781 The Court held that the Kansas law’s mental disorder requirement satisfied the<br />
requirements <strong>of</strong> substantive due process saying:<br />
The precommitment requirement <strong>of</strong> a “mental abnormality” or “personality<br />
disorder” is consistent with the requirements <strong>of</strong> . . . other statutes that we have<br />
upheld in that it narrows the class <strong>of</strong> persons eligible for commitment to those<br />
who are unable to control their dangerousness. 782<br />
The Court also considered Hendricks’ double jeopardy <strong>and</strong> ex post facto arguments.<br />
“As a threshold matter,” the Court said, “commitment under the Act does not implicate either <strong>of</strong><br />
the two primary objectives <strong>of</strong> criminal punishment: retribution or deterrence.” 783 In addressing<br />
this issue, Hendricks firmly settled a question that has troubled many courts—whether civil<br />
777<br />
Kan. Stat. Ann. § 59-29a02(a) (1994); see also Hendricks, 521 U.S. at 352, 117 S. Ct. at<br />
2077.<br />
778<br />
Hendricks, 521 U.S. at 355, 117 S. Ct. at 2078.<br />
779<br />
Id. at 356, 117 S. Ct. at 2079.<br />
780<br />
Id. at 359, 117 S. Ct. at 2080.<br />
781<br />
Id. at 359, 117 S. Ct. at 2081.<br />
782<br />
Id. at 358, 117 S. Ct. at 2080.<br />
783<br />
Id. at 361-62, 117 S. Ct. at 2082.<br />
103
confinement <strong>of</strong> a dangerous person primarily for purposes <strong>of</strong> public protection is a non-punitive<br />
civil purpose. Such confinement is <strong>of</strong>ten derisively termed “preventive detention.” 784 The<br />
Supreme Court clearly held that such confinement is not punitive for the purposes <strong>of</strong> double<br />
jeopardy <strong>and</strong> ex post facto prohibitions:<br />
[T]he Kansas court’s determination that the Act’s “overriding concern” was the<br />
continued “segregation <strong>of</strong> sexually violent <strong>of</strong>fenders” is consistent with our<br />
conclusion that the Act establishes civil proceedings, especially when that<br />
concern is coupled with the State’s ancillary goal <strong>of</strong> providing treatment to those<br />
<strong>of</strong>fenders, if such is possible. While we have upheld state civil commitment<br />
statutes that aim both to incapacitate <strong>and</strong> to treat, we have never held that the<br />
Constitution prevents a State from civilly detaining those for whom no treatment<br />
is available, but who nevertheless pose a danger to others. A State could hardly<br />
be seen as furthering a “punitive” purpose by involuntarily confining persons<br />
affected with an untreatable, highly contagious disease. 785<br />
While Justice Kennedy <strong>of</strong>fered additional comments in a concurring opinion, he<br />
nonetheless joined the Court’s majority opinion “in full.” 786<br />
Justice Breyer wrote a dissenting opinion. He agreed that Hendricks’ mental disorder<br />
was sufficient to satisfy the requirements <strong>of</strong> substantive due process. 787 But he did “not<br />
subscribe to all <strong>of</strong> [the] reasoning” <strong>of</strong> the majority opinion, <strong>and</strong> instead identified three limiting<br />
circumstances that he believed combined to make Hendricks’ disorder constitutionally sufficient<br />
for commitment:<br />
(1) many mental health pr<strong>of</strong>essionals consider pedophilia a serious mental<br />
disorder; <strong>and</strong> (2) Hendricks suffers from a classic case <strong>of</strong> irresistible impulse,<br />
namely he is so afflicted with pedophilia that he cannot “control the urge” to<br />
molest children; <strong>and</strong> (3) his pedophilia presents a serious danger to those children<br />
. . . . 788<br />
While Justice Breyer agreed that substantive due process was satisfied in Hendricks’<br />
case, he concluded that Hendricks’ commitment constituted punishment, <strong>and</strong> was thus precluded<br />
by the prohibition against ex post facto laws. Justice Breyer observed that a remedial,<br />
non-punitive law would be expected to provide treatment for a person committed because <strong>of</strong> a<br />
784 See, e.g., Blodgett, 510 N.W.2d at 918 (Wahl dissenting); but see Zadvydas v. Davis, 533<br />
U.S. 678, 690-91, 121 S. Ct. 2491, 2499 (2001) (describing Hendricks as allowing preventive<br />
detention “where a special justification, such as harm-threatening mental illness, outweighs the<br />
‘individual’s constitutionally protected interest in avoiding physical restraint”).<br />
785 Hendricks, 521 U.S. at 366, 117 S. Ct. at 2084 (citation omitted). In a later case, the Supreme<br />
Court non-pejoratively referred to the civil commitment involved in Hendricks as permissible<br />
“preventive detention.” Zadvydas v. Davis, 533 U.S. 678, 690-91, 121 S. Ct. 2491, 2499 (2001).<br />
786 Hendricks, 521 U.S. at 371, 117 S. Ct. at 2087.<br />
787 Id. at 373, 117 S. Ct. at 2087-88.<br />
788 Id. at 376-77, 117 S. Ct. at 2089.<br />
104
mental abnormality, to the extent that such treatment may be available. 789 He said Kansas<br />
delayed treatment until after the person’s prison sentence was completed, did not attempt to<br />
provide meaningful treatment to persons even after commitment, <strong>and</strong> did not require the<br />
consideration <strong>of</strong> less restrictive alternatives to placement in the state treatment program. 790 He<br />
concluded: “The statutory provisions before us do amount to punishment primarily because . . .<br />
the legislature did not tailor the statute to fit the nonpunitive civil aim <strong>of</strong> treatment, which it<br />
concedes exists in Hendricks’ case.” 791<br />
Justice Breyer’s dissenting opinion was joined in full by Justices Stevens <strong>and</strong> Souter, <strong>and</strong><br />
in part by Justice Ginsburg.<br />
3. Linehan IV—substantive due process, ex post facto <strong>and</strong> double<br />
jeopardy in light <strong>of</strong> Hendricks.<br />
After it decided Hendricks, the U.S. Supreme Court granted certiorari in Linehan III,<br />
vacated the decision <strong>and</strong> rem<strong>and</strong>ed it to the Minnesota Supreme Court to reconsider in light <strong>of</strong><br />
Hendricks. 792 The state supreme court issued its decision, Linehan IV, in May 1999. 793<br />
In a 4-2-1 decision, the state supreme court in Linehan IV again upheld the<br />
constitutionality <strong>of</strong> the SDP law, but adopted an interpretation <strong>of</strong> Hendricks falling between the<br />
positions argued by Linehan <strong>and</strong> the State. Linehan argued that substantive due process, as<br />
interpreted in Hendricks, requires an utter lack <strong>of</strong> power to control (i.e., the Pearson st<strong>and</strong>ard) to<br />
support a sexual predator civil commitment. The State contended that Hendricks did not require<br />
a separate showing <strong>of</strong> inability to control, but instead held that the three elements <strong>of</strong> the Kansas<br />
statute (similar to those <strong>of</strong> Minnesota’s SDP law) “narrow[ed] the class <strong>of</strong> persons eligible for<br />
commitment to those who are unable to control their dangerousness.” 794 The State’s alternative<br />
argument on this point was that, even if Hendricks required some showing <strong>of</strong> inability to control,<br />
it was not a complete or utter inability to control, as Linehan argued, but only lack <strong>of</strong> adequate<br />
control, or difficulty in controlling behavior.<br />
This state supreme court in Linehan IV adopted this middle position. The court held that,<br />
despite the SDP law’s statement that the petitioner need not show inability to control, the law<br />
must be interpreted in light <strong>of</strong> Hendricks to require a showing <strong>of</strong> some impairment <strong>of</strong> that ability:<br />
We now clarify that the SDP Act allows civil commitment <strong>of</strong> sexually dangerous<br />
persons who have engaged in a prior course <strong>of</strong> sexually harmful behavior <strong>and</strong><br />
whose present disorder or dysfunction does not allow them to adequately control<br />
789<br />
Id. at 382-83, 117 S. Ct. at 2092.<br />
790<br />
Id. at 383-89, 117 S. Ct. at 2092-95.<br />
791<br />
Id. at 396, 117 S. Ct. at 2098.<br />
792<br />
522 U.S. 1011, 118 S. Ct. 596 (1997).<br />
793<br />
In re Linehan (Linehan IV), 594 N.W.2d 867 (Minn. 1999), cert. denied, 528 U.S. 1049<br />
(1999).<br />
794<br />
See Hendricks, 521 U.S. at 358, 117 S. Ct. at 2080.<br />
105
their sexual impulses, making it highly likely that they will engage in harmful<br />
sexual acts in the future. 795<br />
The court then examined whether the record showed by clear <strong>and</strong> convincing evidence that<br />
Linehan satisfied the commitment st<strong>and</strong>ard identified in the decision: “We review only whether<br />
appellant demonstrates a lack <strong>of</strong> adequate control over his sexually harmful behavior based on<br />
the district court’s findings.” 796 The court affirmed Linehan’s commitment, holding that the<br />
“district court records . . . are replete with findings concerning appellant’s lack <strong>of</strong> volitional<br />
control over his sexually dangerous tendencies.” 797<br />
Linehan also argued that Hendricks provided additional support for his double jeopardy<br />
<strong>and</strong> ex post facto arguments, <strong>and</strong> that Hendricks required states to provide certain procedural<br />
measures, including jury trial, pro<strong>of</strong> beyond a reasonable doubt <strong>and</strong> periodic review with the<br />
burden on the state to show that the commitment requirements continue to be met. The state<br />
court in Linehan IV held that Hendricks supported the court’s rejection <strong>of</strong> Linehan’s double<br />
jeopardy <strong>and</strong> ex post facto arguments in Linehan III, <strong>and</strong> that the U.S. Supreme Court had not<br />
considered any procedural due process arguments in Hendricks. 798<br />
Justice Page dissented from the court’s decision upholding the law. 799 Justice Lancaster<br />
wrote a decision, joined by Justice Paul Anderson, concurring in part <strong>and</strong> dissenting in part. 800<br />
These latter two justices did not disagree that with the majority’s interpretation <strong>of</strong> Hendricks, or<br />
its determination that Linehan satisfied the “inability to adequately control” st<strong>and</strong>ard. But they<br />
did not believe it possible to interpret the SDP law to contain an “inability to adequately control”<br />
requirement.<br />
The U.S. Supreme Court denied Linehan’s certiorari petition. 801<br />
4. Disposition <strong>of</strong> other cases, after Linehan IV.<br />
A number <strong>of</strong> other SDP-only commitment cases were held in abeyance, awaiting the<br />
supreme court’s decision in Linehan IV. Following that decision, the court <strong>of</strong> appeals reviewed<br />
the case records to determine whether the trial courts’ findings supported a conclusion that the<br />
person lacked adequate control over his sexual impulses. In some cases, the appellate court<br />
determined that this st<strong>and</strong>ard was met, <strong>and</strong> affirmed the decision. 802 In other cases, the court<br />
rem<strong>and</strong>ed the case to the trial court for additional fact finding. 803<br />
795<br />
Linehan IV, 594 N.W.2d at 876.<br />
796<br />
Id.<br />
797<br />
Id.<br />
798<br />
Id. at 871-72 & n.2.<br />
799<br />
Id. at 878.<br />
800<br />
Id. at 885.<br />
801<br />
528 U.S. 1049, 120 S. Ct. 587 (1999).<br />
802<br />
See, e.g., In re Coleman, No. C1-96-216 (Minn. Ct. App. Ord. Opin. July 22, 1999).<br />
803<br />
See, e.g., In re Schweninger, No. C1-96-362 (Minn. Ct. App. Ord. Opin. July 28, 1999).<br />
106
In subsequent appeals in those cases, the court <strong>of</strong> appeals affirmed the trial court’s<br />
practice <strong>of</strong> determining the lack-<strong>of</strong>-adequate-ability-to-control issue on the existing record, even<br />
though the proposed patient had requested a new trial on the issue. This practice was approved<br />
both when ability to control had been an issue at trial in the case (because commitment under the<br />
SPP statute had also been sought) 804 <strong>and</strong> where inability to control was not directly at issue at<br />
trial, but there had been evidence addressing it. 805 Whether to grant a new trial on the issue was<br />
within the discretion <strong>of</strong> the trial court, <strong>and</strong> the court’s decision was reviewed under the abuse-<strong>of</strong>discretion<br />
st<strong>and</strong>ard. 806<br />
5. U.S. Supreme Court decision in Kansas v. Crane—inability to control.<br />
In 2002, the U.S. Supreme Court issued a decision in a second Kansas case, Kansas v.<br />
Crane, 807 clarifying its holding in Hendricks concerning inability to control behavior. The<br />
Kansas Supreme Court in In re Crane 808 held that Hendricks required “a finding that the<br />
defendant cannot control his dangerous behavior,” <strong>and</strong> overturned Crane’s commitment because<br />
the jury had not been instructed to make such a finding. Kansas petitioned for certiorari to the<br />
U.S. Supreme Court, challenging that holding.<br />
The parties in Crane made the same arguments that the parties made to the Minnesota<br />
Supreme Court in Linehan IV. Crane argued that Hendricks required the State to show that the<br />
person has a complete inability to control his behavior. The State, on the other h<strong>and</strong>, argued that<br />
no showing <strong>of</strong> inability to control is required, except for that implicit in the commitment<br />
st<strong>and</strong>ard—that the person engages in harmful conduct because <strong>of</strong> his mental disorder. And, as<br />
the Minnesota Supreme Court did in Linehan IV, the high Court adopted an intermediate<br />
position, stating:<br />
[W]e recognize that in cases where lack <strong>of</strong> control is at issue, “inability to control<br />
behavior” will not be demonstrable with mathematical precision. It is enough to<br />
say that there must be pro<strong>of</strong> <strong>of</strong> serious difficulty in controlling behavior. And<br />
this, when viewed in light <strong>of</strong> such features <strong>of</strong> the case as the nature <strong>of</strong> the<br />
psychiatric diagnosis, <strong>and</strong> the severity <strong>of</strong> the mental abnormality itself, must be<br />
sufficient to distinguish the dangerous sexual <strong>of</strong>fender whose serious mental<br />
804<br />
In re Martinelli, No. C4-00-748, 2000 WL 1285430, at *2-3 (Minn. Ct. App. Sept. 12, 2000)<br />
(unpublished), review denied (Minn. 2000), vacated <strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 1160, 122 S. Ct.<br />
1171 (2002), aff’d after rem<strong>and</strong>, 649 N.W.2d 886 (Minn. Ct. App. 2002).<br />
805<br />
In re Prather, No. C0-00-987, 2000 WL 1778321, at *3 (Minn. Ct. App. Nov. 21, 2000)<br />
(unpublished).<br />
806<br />
Id.; In re Martinelli, No. C4-00-748, 2000 WL 1285430, at *3 (Minn. Ct. App. Sept. 12,<br />
2000) (unpublished), review denied (Minn. 2000), vacated <strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 1160, 122<br />
S. Ct. 1171 (2002), aff’d after rem<strong>and</strong>, 649 N.W.2d 886 (Minn. Ct. App. 2002).<br />
807<br />
Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002).<br />
808<br />
In re Crane, 7 P.3d 285 (Kan. 2000), vacated <strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 407, 122 S. Ct. 867<br />
(2002).<br />
107
illness, abnormality, or disorder subjects him to civil commitment from the<br />
dangerous but typical recidivist convicted in an ordinary criminal case. 809<br />
The Court also engaged in a rather obscure discussion <strong>of</strong> “volitional impairment” <strong>of</strong><br />
ability to control, as opposed to “emotional impairment.” The Court explained that, by<br />
“volitional impairment,” it referred to situations in which the person has sexual urges that the<br />
person has particular difficulty in controlling. The Court said:<br />
Hendricks himself stated that he could not “control the urge” to molest children.<br />
In addition, our cases suggest that civil commitment <strong>of</strong> dangerous sexual<br />
<strong>of</strong>fenders will normally involve individuals who find it particularly difficult to<br />
control their behavior—in the general sense described above. 810<br />
But the Court appeared to indicate that commitment would be permissible in cases <strong>of</strong><br />
“emotional” abnormalities, as well as “volitional” ones. The Court said:<br />
Hendricks must be read in context. The Court did not draw a clear distinction<br />
between the purely “emotional” sexually related mental abnormality <strong>and</strong> the<br />
“volitional.” Here, as in other areas <strong>of</strong> psychiatry, there may be “considerable<br />
overlap between a . . . defective underst<strong>and</strong>ing or appreciation <strong>and</strong> . . . [an] ability<br />
to control . . . behavior.” Nor, when considering civil commitment, have we<br />
ordinarily distinguished for constitutional purposes among volitional, emotional,<br />
<strong>and</strong> cognitive impairments. 811<br />
By this discussion, the Court was apparently recognizing that “serious difficulty in controlling<br />
behavior” could arise not only where the person’s disorder renders him unable to avoid sexual<br />
assault, despite his desire to avoid it, but also in situations where the disorder causes the person<br />
to want to engage in sexual assault (emotional impairments) or causes the person to not<br />
underst<strong>and</strong> the nature <strong>of</strong> what he is doing (cognitive impairments).<br />
Justice Scalia, joined by Justice Thomas (who had authored the plurality opinion in<br />
Hendricks), dissented from the majority opinion. The two wrote: “It could not be clearer that, in<br />
the Court’s estimation [in Hendricks], the very existence <strong>of</strong> a mental abnormality or personality<br />
disorder that causes a likelihood <strong>of</strong> repeat sexual violence in itself establishes the requisite<br />
‘difficulty if not impossibility’ <strong>of</strong> control.” 812<br />
6. Cases addressing Minnesota’s laws following Crane.<br />
Following Crane, several committed persons asserted that the Linehan IV st<strong>and</strong>ard does<br />
not comply with Crane. These challenges were rejected.<br />
809<br />
Kansas v. Crane, 534 U.S. at 413, 122 S. Ct. at 870 (emphasis added).<br />
810<br />
Id. at 414, 122 S. Ct. at 871.<br />
811<br />
Id. at 415, 122 S. Ct. at 871-72 (citations omitted, additions <strong>and</strong> ellipses in original).<br />
812<br />
Id. at 419-20, 122 S. Ct. at 874 (Scalia, J., dissenting) (emphasis added).<br />
108
Immediately after the decision in Crane, the appellant in In re Ramey argued that the<br />
Linehan IV st<strong>and</strong>ard under which he was committed—“does not allow them to adequately<br />
control”—did not comply with the Crane requirement that “there must be pro<strong>of</strong> <strong>of</strong> serious<br />
difficulty in controlling behavior” or Crane’s requirement that the person’s disorder must be<br />
sufficient to distinguish him from the ordinary criminal recidivist. 813 The court <strong>of</strong> appeals<br />
rejected the claim, holding that the Linehan IV st<strong>and</strong>ard comports with Crane, 814 <strong>and</strong> the state<br />
supreme court denied review.<br />
In a second case, In re Martinelli, the state appellate court again held that the Linehan IV<br />
st<strong>and</strong>ard was consistent with Crane. 815 The court termed the difference between the Crane<br />
“serious difficulty in controlling behavior” st<strong>and</strong>ard <strong>and</strong> Linehan IV’s “does not allow them to<br />
adequately control their sexual impulses” st<strong>and</strong>ard only a “semantic distinction.” 816 It noted that<br />
the U.S. Supreme Court in Crane had declined to “give the phrase ‘lack <strong>of</strong> control’ a particularly<br />
narrow or technical meaning,” <strong>and</strong> had expressly stated that it “was not laying down any ‘bright<br />
line rules.’” 817 The appellate court held that Martinelli’s lack <strong>of</strong> ability to control, considered in<br />
light <strong>of</strong> his diagnoses <strong>of</strong> hebephilia <strong>and</strong> antisocial personality disorder, “was sufficient to<br />
distinguish Martinelli from the ‘typical recidivist’ <strong>of</strong>fender, as required by Crane.” 818 The state<br />
supreme court denied Martinelli’s petition for review <strong>and</strong> the United States Supreme Court<br />
denied certiorari.<br />
The third significant case to address the Linehan IV/Crane issue was an Eighth Circuit<br />
decision involving Linehan, himself. In Linehan v. Milczark, a habeas corpus case, the circuit<br />
court held that the Linehan IV st<strong>and</strong>ard complies with the dictates <strong>of</strong> Crane. 819 Significantly, the<br />
court held that evidence meeting the Linehan IV st<strong>and</strong>ard is per se sufficient to distinguish the<br />
committed person from the typical recidivist, <strong>and</strong> thus that Crane’s “sufficient to distinguish”<br />
language does not impose a separate requirement to be proved. The circuit court said:<br />
The st<strong>and</strong>ard enunciated in Linehan IV requires a finding <strong>of</strong> “lack <strong>of</strong> adequate<br />
control” in relation to a properly diagnosed disorder or dysfunction, as well as<br />
findings <strong>of</strong> past sexual violence <strong>and</strong> resultant likelihood <strong>of</strong> future sexually<br />
dangerous behavior. This combination <strong>of</strong> required findings will adequately<br />
distinguish an <strong>of</strong>fender subject to civil commitment, who has difficulty<br />
controlling his behavior because <strong>of</strong> a disorder or dysfunction, from the more<br />
813<br />
In re Ramey, 648 N.W.2d 260 (Minn. Ct. App. 2002).<br />
814<br />
Id. at 267. The appellate court also rejected Ramey’s claim that Linehan IV’s inability-toadequately-control<br />
requirement was unconstitutionally vague. Id. at 267-68.<br />
815<br />
In re Martinelli, 649 N.W.2d 886, 888 (Minn. Ct. App. 2002), review denied (Minn. Oct. 29,<br />
2002), cert. denied, 538 U.S. 933 (2003); see also In re Jannetta, No. A07-2049, 2008 WL<br />
669115, *5-6 (Minn. Ct. App. Mar. 11, 2008) (unpublished).<br />
816<br />
Id. at 891; see also Prather v. O’Keefe, No. A03-860, 2003 WL 23024537 (Minn. Ct. App.<br />
Dec. 30, 2003) (unpublished) (holding that, in light <strong>of</strong> previous Linehan IV decision, Crane did<br />
not change the applicable commitment st<strong>and</strong>ard in Minnesota).<br />
817<br />
Martinelli, 649 N.W.2d at 890 (quoting Crane, 534 U.S. at 413).<br />
818<br />
Id.<br />
819<br />
Linehan v. Milczark, 315 F.3d 920, 924 (8th Cir. 2003).<br />
109
typical <strong>of</strong>fender with behavioral problems, who is best dealt with in the criminal<br />
system. The SDP Act st<strong>and</strong>ard, as narrowed by the Minnesota Supreme Court in<br />
Linehan IV, therefore adequately distinguishes between the typical recidivist <strong>and</strong><br />
the dangerous sexual <strong>of</strong>fender <strong>and</strong> complies with substantive due process<br />
requirements. 820<br />
7. Other constitutional issues under SDP law.<br />
In other cases, the court <strong>of</strong> appeals has addressed constitutional challenges to the SDP<br />
law not decided in Linehan III <strong>and</strong> Linehan IV. On several occasions the court has rejected<br />
arguments that the SDP law is unconstitutionally vague. 821 In In re Ramey, the court rejected<br />
arguments that the “inability to adequately control” <strong>and</strong> “course” <strong>of</strong> harmful sexual conduct<br />
requirements were too vague. 822 In In re Martin, the court rejected an argument that the term<br />
“sexual conduct” was unconstitutionally vague as applied to sexually motivated stalking<br />
behavior. 823 In In re Fox, the court rejected the argument that the statute is unduly vague<br />
because it leads to arbitrary enforcement where the county attorney pursues commitment despite<br />
a determination by the Department <strong>of</strong> Corrections not to refer the case for commitment. 824<br />
The court <strong>of</strong> appeals has held that the SDP law’s rebuttable presumption <strong>of</strong><br />
harmfulness <strong>of</strong> conduct that would violate specified criminal statutes does not<br />
unconstitutionally shift the burden <strong>of</strong> pro<strong>of</strong> to the respondent. 825<br />
820<br />
Id. at 927 (emphasis added); see also In re Jannetta, No. A07-2049, 2008 WL 669115, *5-6<br />
(Minn. Ct. App. Mar. 11, 2008) (unpublished); In re Tallman, No. A07-58, 2007 WL 1412979,<br />
at *4 (Minn. Ct. App. May 15, 2007) (unpublished).<br />
821<br />
In re Schweninger, No. C1-96-362, 1997 WL 613670 (Minn. Ct. App. Oct. 7, 1997), review<br />
denied (Minn. 1997), vacated <strong>and</strong> rem<strong>and</strong>ed, 525 U.S. 802, 119 S. Ct. 33 (1998); In re Coleman,<br />
Nos. C1-96-216, C0-96-1521, 1997 WL 585902 (Minn. Ct. App. Sept. 23, 1997), review denied<br />
(Minn. Nov. 18, 1997), vacated <strong>and</strong> rem<strong>and</strong>ed, 524 U.S. 924 (1998), aff’d after rem<strong>and</strong>, No. C1-<br />
96-216 (Minn. Ct. App. Ord. Opin. July 28, 1999); In re Crocker, No. C0-95-2500, 1996 WL<br />
192974 (Minn. Ct. App. Apr. 23, 1996), aff’d (Minn. Jan. 21, 1997); In re Edstrom, No. C2-95-<br />
2448, 1996 WL 132141 (Minn. Ct. App. Mar. 26, 1996), aff’d (Minn. Jan. 21, 1997).<br />
822<br />
In re Ramey, 648 N.W.2d 260, 267-69 (Minn. Ct. App. 2002); see also In re Mosby,<br />
No. A07-755, 2007 WL 2781806, at *4 (Minn. Ct. App. Sept. 25, 2007) (unpublished); In re<br />
Tallman, No. A07-58, 2007 WL 1412979, at *4 (Minn. Ct. App. May 15, 2007) (unpublished);<br />
In re McRae, No. A04-2028, 2005 WL 646801, at *2 (Minn. Ct. App. Mar. 22, 2005)<br />
(unpublished) (addressing “adequate control” language); In re Fox, No. A03-1019, 2004 WL<br />
61111, at *4-5 (Minn. Ct. App. Jan. 13, 2004) (unpublished).<br />
823<br />
In re Martin, 661 N.W.2d 632, 640 (Minn. Ct. App. 2003).<br />
824<br />
In re Fox, No. A03-1019, 2004 WL 61111, at *5 (Minn. Ct. App. Jan. 13, 2004)<br />
(unpublished).<br />
825<br />
In re Kindschy, 634 N.W.2d 723, 729-31 (Minn. Ct. App. 2001), review denied (Minn. 2001).<br />
110
C. Constitutional Challenges Applicable To Both Statutes.<br />
1. St<strong>and</strong>ards <strong>of</strong> review <strong>and</strong> procedural requirements for constitutional<br />
issues.<br />
The st<strong>and</strong>ard <strong>of</strong> review normally applied to constitutional challenges is well established:<br />
Whether a statute is constitutional is a question <strong>of</strong> law subject to de novo<br />
review. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). When considering the<br />
constitutionality <strong>of</strong> a statute, we are mindful that laws come to this court with a<br />
presumption <strong>of</strong> validity <strong>and</strong> may be declared unconstitutional only with great<br />
caution <strong>and</strong> only if absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364<br />
(Minn. 1989). A person challenging the constitutionality <strong>of</strong> a statute has the<br />
burden <strong>of</strong> establishing beyond a reasonable doubt that the statute violates a<br />
claimed right. In re Conservatorship <strong>of</strong> Foster, 547 N.W.2d 81, 85 (Minn.<br />
1996). 826<br />
For one type <strong>of</strong> constitutional challenge, however, the burden is at least partially on the<br />
government. When a person challenges a civil commitment st<strong>and</strong>ard as violating substantive due<br />
process, the law is subject to “strict scrutiny” because it involves the committed person’s<br />
fundamental right to liberty. 827 In such cases, the burden is on the government to show that the<br />
law is narrowly tailored to serve a compelling state interest. 828<br />
The st<strong>and</strong>ard applicable to equal protection challenges under the Minnesota Constitution<br />
involving the substance <strong>of</strong> civil commitment statutes is also noteworthy. Our supreme court has<br />
said that “intermediate scrutiny” applies to such challenges. Under this st<strong>and</strong>ard, “the statute’s<br />
genuine <strong>and</strong> substantial distinctions must be reasonably connected to achieving the state’s<br />
legitimate purposes.” 829 “Deference to the legislature is due,” however. 830 This st<strong>and</strong>ard is<br />
higher than the ordinary “rationally related to a legitimate state interest” st<strong>and</strong>ard.<br />
The court <strong>of</strong> appeals is bound by, i.e., may not overturn, precedent from the state supreme<br />
court. 831<br />
826<br />
Id. at 729.<br />
827<br />
In re Linehan (Linehan III), 557 N.W.2d 171, 181, vacated <strong>and</strong> rem<strong>and</strong>ed, 522 U.S. 1011<br />
(1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).<br />
828<br />
Id.<br />
829<br />
Id. at 186.<br />
830<br />
Id.<br />
831<br />
In re Webber, No. A08-1903, 2009 WL 1119239, at *8 (Minn. Ct. App. Apr. 28, 2009),<br />
review denied (Minn. June 30, 2009) (unpublished) (citing State v. Ward, 580 N.W.2d 67, 74<br />
(Minn. Ct. App. 1998); In re Braylock, No. A06-1053, 2006 WL 3409875, at *4 (Minn. Ct. App.<br />
Nov. 28, 2006) (unpublished) (same).<br />
111
Although the appellate rules require a party challenging the constitutionality <strong>of</strong> a statute<br />
to give notice to the Attorney General, the rule is not an absolute bar to considering the<br />
constitutional issue. 832<br />
2. Rulings on particular constitutional issues.<br />
In two cases under the SDP law, the state court <strong>of</strong> appeals has rejected an argument that<br />
the law violates equal protection by providing more lenient st<strong>and</strong>ards for commitment <strong>of</strong><br />
someone as an SDP than as mentally ill <strong>and</strong> dangerous. 833 And the appellate court has rejected<br />
the equal protection claim that others with similar backgrounds <strong>and</strong> histories are not subject to<br />
commitment, because the legislature could determine that the class <strong>of</strong> persons described by the<br />
statute presented a special harm. 834<br />
The lack <strong>of</strong> a recent overt act requirement in the SPP <strong>and</strong> SDP laws does not violate due<br />
process. While some other state courts have recognized such a requirement, the purpose <strong>of</strong> such<br />
a requirement is to enhance the prediction <strong>of</strong> dangerousness, which Minnesota’s law does in<br />
other ways. 835<br />
The court <strong>of</strong> appeals has rejected the argument that the SPP law violates double<br />
jeopardy because <strong>of</strong> treatment <strong>of</strong> committed persons under the Vulnerable Adults Act, voting<br />
laws, <strong>and</strong> a statute requiring a person committed to the Department <strong>of</strong> Corrections <strong>and</strong> as SPP to<br />
first serve his prison sentence. 836 Moreover, the appellate court has rejected the argument that,<br />
because confinement at the Minnesota Sex Offender Program may be secure enough to qualify<br />
for “jail credit” in sentencing, it must be considered punitive for purposes <strong>of</strong> double jeopardy<br />
analysis. 837 Likewise, the court has held that the fact that the Minnesota Sex Offender Program<br />
operates parallel programs in the state prison system <strong>and</strong> in the state Department <strong>of</strong> Human<br />
832<br />
In re Brewer, No. A08-2264, 2009 WL 1182608, at *1 (Minn. Ct. App. May 5, 2009)<br />
(unpublished).<br />
833<br />
In re Schweninger, No. C1-96-362, 1997 WL 613670 (Minn. Ct. App. Oct. 7, 1997), review<br />
denied (Minn. 1997), vacated <strong>and</strong> rem<strong>and</strong>ed, 525 U.S. 802 (1998); In re Coleman, Nos. C1-96-<br />
216, C0-96-1521, 1997 WL 585902 (Minn. Ct. App. Sept. 23, 1997), review denied (Minn. Nov.<br />
18, 1997), vacated <strong>and</strong> rem<strong>and</strong>ed, 524 U.S. 924 (1998), aff’d after rem<strong>and</strong>, No. C1-96-216<br />
(Minn. Ct. App. Ord. Opin. July 28, 1999); see also In re Martin, 661 N.W.2d 632, 641 (Minn.<br />
Ct. App. 2003).<br />
834<br />
In re Stringer, No. A05-2240, 2006 WL 2129829, at *5-6 (Minn. Ct. App. Aug. 1, 2006)<br />
(unpublished), (citing Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 275, 60 S. Ct.<br />
523, 526 (1940)).<br />
835<br />
In re Urbanek, No. A05-1633, 2006 WL 44358, at 3 (Minn. Ct. App. Jan. 10, 2006)<br />
(unpublished); see also In re Markey, No. A05-2453, 2006 WL 1229726, at *2 (Minn. Ct. App.<br />
May 9, 2006) (unpublished).<br />
836<br />
Joelson v. O’Keefe, 594 N.W.2d 905, 911-12 (Minn. Ct. App. 1999); see also In re Martin,<br />
661 N.W.2d 632, 641 (Minn. Ct. App. 2003) (rejecting general double jeopardy argument).<br />
837<br />
In re Green, No. A06-2272, 2007 WL 1532156, at *6 (Minn. Ct. App. May 29, 2007)<br />
(unpublished).<br />
112
Services does not render the DHS program the equivalent <strong>of</strong> correctional confinement. 838<br />
Similarly, even though the appellate court held that matters covered by the SDP <strong>and</strong> SPP laws<br />
are akin to criminal laws for the purposes <strong>of</strong> considering issues <strong>of</strong> jurisdiction over members <strong>of</strong><br />
Indian b<strong>and</strong>s, this does not mean that the laws are punitive for purposes <strong>of</strong> double jeopardy. 839<br />
And the appellate court has held that, “[b]ecause the [SDP] statute’s justification is the state’s<br />
interest in public protection <strong>and</strong> treatment rather than punishment, it cannot be cruel <strong>and</strong><br />
unusual” punishment. 840<br />
The appellate court has rejected the argument that the lack <strong>of</strong> discharges <strong>of</strong> persons<br />
committed as SPP/SDP from the Minnesota Sex Offender Program renders the commitments<br />
violative <strong>of</strong> due process, equal protection or the prohibitions against double jeopardy <strong>and</strong> ex post<br />
facto laws. 841 The appellate court noted the statement in In re Blodgett that, “[s]o long as civil<br />
commitment is programmed to provide treatment <strong>and</strong> periodic review, due process is<br />
provided.” 842 The court also observed that issues about the adequacy <strong>of</strong> treatment in the state<br />
program, possible success in treatment <strong>and</strong> future opportunity for discharge are factually <strong>and</strong><br />
procedurally premature at the time <strong>of</strong> commitment. 843<br />
838<br />
In re Ponicki, No. A09-945, 2009 WL 3818390, at *4 (Minn. Ct. App. Nov. 17, 2009)<br />
(unpublished), review denied (Minn. Dec. 23, 2009).<br />
839<br />
In re Giishig, No. A07-0616, 2007 WL 2601423, at 14 (Minn. Ct. App. Sept. 11, 2007)<br />
(unpublished).<br />
840<br />
In re Lincoln, No. A08-0896, 2008 WL 4909853, at *6 (Minn. Ct. App. Nov. 18, 2008),<br />
review denied (Minn. Jan. 20, 2009) (unpublished); In re McRae, No. A04-2028, 2005 WL<br />
646801, at *3 (Minn. Ct. App. Mar. 22, 2005) (unpublished); see also Senty-Haugen v. Goodno,<br />
462 F.3d 876, 889 (8th Cir. 2006) (holding that, because committed person is not a prisoner,<br />
claim <strong>of</strong> improper treatment is not properly analyzed under cruel-<strong>and</strong>-unusal-punishment<br />
theory).<br />
841<br />
In re Harrison, No. A07-1181, 2007 WL 4305377, at *7 (Minn. Ct. App. Dec. 11, 2007)<br />
(unpublished) (saying, “The absence <strong>of</strong> a guaranteed success rate in treatment . . . does not<br />
establish that civil commitment as an SDP or an SPP violates substantive due process”); In re<br />
Christiansen, No. A07-1290, 2007 WL 4305465, at *9-10 (Minn. Ct. App. Dec. 11, 2007)<br />
(unpublished); In re Anderson, No. A06-2008, 2007 WL 824019, at *7-8 (Minn. Ct. App.<br />
Mar. 20, 2007) (unpublished); In re Alverson, No. A06-1567, 2007 WL 447159, at *11-12<br />
(Minn. Ct. App. Feb. 13, 2007) (unpublished); In re Foley, No. A04-2340, 2005 WL 1154334, at<br />
*7 (Minn. Ct. App. May 17, 2005) (unpublished); In re Fern<strong>and</strong>es, No. A06-506, 2006 WL<br />
2947642, at *2 (Minn. Ct. App. Oct. 17, 2006) (unpublished); In re Kirck<strong>of</strong>, No. A06-956, 2006<br />
WL 3007995, at *8 (Minn. Ct. App. Oct. 24, 2006) (unpublished).<br />
842<br />
In re Jannetta, No. A07-2049, 2008 WL 669115, at *6 (Minn. Ct. App. Mar. 11, 2008)<br />
(unpublished); In re Anderson, No. A06-2008, 2007 WL 824019, at *7 (Minn. Ct. App. Mar. 20,<br />
2007) (unpublished); In re Foley, No. A04-2340, 2005 WL 1154334, at *7 (Minn. Ct. App.<br />
May 17, 2005) (unpublished).<br />
843<br />
In re Travis, 767 N.W.2d 52 (Minn. Ct. App. 2009); In re Jannetta, No. A07-2049, 2008 WL<br />
669115, at *6 (Minn. Ct. App. Mar. 11, 2008) (unpublished); In re Harrison, No. A07-1181,<br />
2007 WL 4305377, at *7 (Minn. Ct. App. Dec. 11, 2007) (unpublished); In re Christiansen,<br />
No. A07-1290, 2007 WL 4305465, at *10 (Minn. Ct. App. Dec. 11, 2007) (unpublished); In re<br />
Semler, No. A06-2213, 2007 WL 969081, at *5 (Minn. Ct. App. Apr. 3, 2007) (unpublished); In<br />
113
And the court also has rejected an argument that an executive order by the Governor<br />
concerning the release <strong>of</strong> committed persons violates due process or equal protection or renders<br />
the statute or the commitment punitive. 844<br />
The court <strong>of</strong> appeals has ruled that the Minnesota Sex Offender Program does not violate<br />
the Fifth Amendment’s privilege against self-incrimination by requiring participants to admit<br />
sex <strong>of</strong>fenses as part <strong>of</strong> their treatment, even if they are still within the perjury statute <strong>of</strong><br />
limitations. 845 The court held that, on the record in that case, neither the incrimination nor the<br />
compulsion element <strong>of</strong> self-incrimination was established. 846 A representative <strong>of</strong> the treatment<br />
program testified that MSOP patients could participate without disclosing identifying<br />
information about victims. 847 And the court held that mere inability to progress in treatment due<br />
to failure to disclose did not constitute “compulsion” for purposes <strong>of</strong> the Fifth Amendment. 848<br />
Both the state court <strong>of</strong> appeals <strong>and</strong> the U.S. District Court have held that the U.S.<br />
Supreme Court’s decision in Hendricks did not require a state to provide the procedures<br />
required under the Kansas statute at issue there, including jury trials, pro<strong>of</strong> beyond a<br />
reasonable doubt or that a state must provide periodic judicial review where the state must<br />
prove that the initial commitment requirements continue to be met. 849 And the state court <strong>of</strong><br />
re Anderson, No. A06-2008, 2007 WL 824019, at *8 (Minn. Ct. App. Mar. 20, 2007)<br />
(unpublished); In re Fern<strong>and</strong>es, No. A06-506, 2006 WL 2947642, at *2 (Minn. Ct. App. Oct. 17,<br />
2006) (unpublished); In re Gorden, No. A06-43, 2006 WL 1806464, at *8 (Minn. Ct. App.<br />
July 3, 2006) (unpublished).<br />
844<br />
In re Sargent, No. A04-1767, 2005 WL 406345, at *5 (Minn. Ct. App. Feb. 22, 2005)<br />
(unpublished); In re Hartleib, No. A04-863, 2004 WL 2283558, at *2-3 (Oct. 12, 2004)<br />
(unpublished); In re Fugelseth, No. A03-1330, 2004 WL 422695, at *7-8 (Minn. Ct. App.<br />
Mar. 9, 2004) (unpublished).<br />
845<br />
Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475 (Minn. Ct. App. July 1, 2008)<br />
(unpublished), review denied (Minn. Sept. 23, 2008).<br />
846<br />
Id. at *2-3.<br />
847<br />
Id. at *2.<br />
848<br />
Id. at *3.<br />
849<br />
Joelson v. O’Keefe, 594 N.W.2d 905 at 910-11; see also In re Fox, No. A03-1019, 2004 WL<br />
61111, at *7 (Minn. Ct. App. Jan. 13, 2004) (unpublished) (addressing jury trial); In re<br />
Chamberlain, No. C6-03-281, 2003 WL 21790534, at *6 (Minn. Ct. App. Aug. 5, 2003)<br />
(unpublished), review denied (Minn. Oct. 21, 2003), cert. denied, 540 U.S. 1225 (2004); In re<br />
Ashman, No. C8-00-1921, 2001 WL 379107, at *4 (Minn. Ct. App. Apr. 17, 2001); In re Wilson,<br />
No. C3-00-434, 2000 WL 1182807 (Minn. Ct. App. Aug. 22, 2000) (unpublished); In re Poole,<br />
Nos. C4-00-85, C8-00-171, 2000 WL 781381 (Minn. Ct. App. June 20, 2000). The five<br />
appellants in Joelson subsequently brought federal habeas petitions also raising the claim that<br />
Hendricks requires a state to provide the same procedures provided under the Kansas statute <strong>and</strong><br />
cited in Hendricks. See Joelson v. O’Keefe, No. 99-Civ-1196 (D. Minn.); Patterson v. O’Keefe,<br />
No. 99-Civ-1195 (D. Minn.); Caprice v. O’Keefe, No. 99-Civ-1197 (D. Minn.); Mattson v.<br />
O’Keefe, No. 99-Civ-1198 (D. Minn.); Duvall v. O’Keefe, No. 99-Civ-1199 (D. Minn.). In each<br />
case, the court rejected the argument that a state must use the procedures identified in Hendricks.<br />
114
appeals has specifically held that the Minnesota commitment act’s clear-<strong>and</strong>-convincingevidence<br />
st<strong>and</strong>ard is constitutional under the U.S. Supreme Court’s decision in Addington v.<br />
Texas. 850<br />
In Pearson, 851 the Minnesota Supreme Court held that the civil jury trial guarantee in our<br />
state constitution (now contained in Minn. Const. art. 1, § 4) does not guarantee a right to jury<br />
trial in psychopathic personality commitment cases. In State ex rel. Anderson v. U.S. Veterans<br />
Hospital, 852 the supreme court reiterated this proposition for all civil commitment cases in<br />
Minnesota. Many recent court <strong>of</strong> appeals decisions have reaffirmed this holding under both the<br />
SPP <strong>and</strong> SDP laws, 853 rejecting arguments raised in a 2003 law review article. 854 Likewise, the<br />
See, e.g., Patterson v. O’Keefe, No. 99-Civ-1195, Rep’t & Recomm. at 13-14 (D. Minn. Aug. 31,<br />
2000) (“no where did the [Supreme] Court m<strong>and</strong>ate every State to adopt such procedures”). See<br />
also Woodruff v. O’Keefe, No. 00-Civ-2478, Rep’t & Recomm. at 7, 13-14 (D. Minn. May 30,<br />
2001); Poole v. O’Keefe, No. 01-Civ-1460, Mem. & Order at 3-4 (D. Minn. Apr. 10, 2002).<br />
850<br />
In re Moore, No. A09-623, 2009 WL 2747980 (Minn. Ct. App. Sept. 1, 2009) (unpublished)<br />
(relying on Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979), <strong>and</strong> rejecting reasoning <strong>of</strong><br />
United States v. Comstock, 507 F. Supp. 2d 522 (E.D. N.C. 2007); In re Hatton, No. A08-0648,<br />
2008 WL 4301816, at *1 (Minn. Ct. App. Sept. 23, 2008) (unpublished) (citing Addington v.<br />
Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979)); In re Knutson, No. A05-1204, 2005 WL 3159930,<br />
at *8 (Minn. Ct. App. Nov. 29, 2005) (unpublished); In re Daniels, No. A03-623, 2003 WL<br />
22707418, at *5 (Minn. Ct. App. Nov. 18, 2003) (unpublished); In re Ashman, No. C8-00-1921,<br />
2001 WL 379107, at *4 (Minn. Ct. App. Apr. 17, 2001); In re Martinelli, No. C6-98-569, 1998<br />
WL 613845, at *4 (Minn. Ct. App. Sept. 15, 1998) (unpublished), rem<strong>and</strong>ed (Minn. Aug. 5,<br />
1999), appeal after rem<strong>and</strong>, No. C4-00-748, 2000 WL 1285430 (Minn. Ct. App. Sept. 12, 2000)<br />
(unpublished), review denied (Minn. 2000), vacated <strong>and</strong> rem<strong>and</strong>ed, 534 U.S. 1160, 122 S. Ct.<br />
1171 (2002), aff’d after rem<strong>and</strong>, 649 N.W.2d 886 (Minn. Ct. App. 2002), citing State v. Ward,<br />
369 N.W.2d 293, 296 (Minn. 1985).<br />
851<br />
State ex rel Pearson v. Probate Court, 287 N.W. 297, 302 (Minn. 1939), aff’d, 309 U.S. 270<br />
(1940).<br />
852<br />
State ex rel. Anderson v. U.S. Veterans Hosp., 128 N.W.2d at 716 & n.16 (Minn. 1964).<br />
853<br />
In re Stringer, No. A05-2240, 2006 WL 2129829, at *7 (Minn. Ct. App. Aug. 1, 2006)<br />
(unpublished); In re Markham, No. A05-2221, 2006 WL 696540, at *7 (Minn. Ct. App. Mar. 21,<br />
2006) (unpublished); In re Knutson, No. A05-1204, 2005 WL 3159930, at *8 (Minn. Ct. App.<br />
Nov. 29, 2005) (unpublished); In re Deloach, No. A05-985, 2005 WL 2496010, at *3 n.2 (Minn.<br />
Ct. App. Oct. 11, 2005) (unpublished); In re Yazzie, No. A05-750, 2005 WL 2130605, at *4<br />
(Minn. Ct. App. Sept. 6, 2005) (unpublished); In re McEiver, No. A04-2002, 2005 WL 704298,<br />
at *1 (Minn. Ct. App. Mar. 29, 2005) (unpublished); In re McRae, No. A04-2028, 2005 WL<br />
646801, at *3 (Minn. Ct. App. Mar. 22, 2005) (unpublished); In re Sargent, No. A04-1767, 2005<br />
WL 406345, at *1-2 (Minn. Ct. App. Feb. 22, 2005) (unpublished); In re Martin, No. A04-1634,<br />
2005 WL 354088, at *5 (Minn. Ct. App. Feb. 15, 2005) (unpublished); In re Johnson,<br />
No. A04-1361, 2005 WL 89862, at *3 (Minn. Ct. App. Jan. 18, 2005) (unpublished); In re<br />
Hartleib, No. A04-863, 2004 WL 2283558, at *1 (Minn. Ct. App. Oct. 12, 2004) (unpublished);<br />
In re Larsen, No. A03-1410, 2004 WL 1049844, at *5 (Minn. Ct. App. May 11, 2004)<br />
(unpublished); McDeid v. Mooney, No. A04-36, 2004 WL 728133, at *2 (Minn. Ct. App. Apr. 6,<br />
2004) (unpublished), review denied (Minn. May 26, 2004), cert. denied, 534 U.S. 1034 (2004).<br />
115
courts have rejected jury trial claims based on the federal Seventh Amendment, 855 as well as due<br />
process, 856 equal protection 857 <strong>and</strong> federal criminal jury trial decisions. 858<br />
The court <strong>of</strong> appeals has held that the provision <strong>of</strong> Minn. Stat. § 253B.185, subd. 1, that<br />
allows the respondent to prove that a less restrictive alternative placement is appropriate <strong>and</strong><br />
available does not unconstitutionally shift the burden <strong>of</strong> pro<strong>of</strong> to the respondent. 859 And a<br />
federal district court has held that there is not clearly established federal law providing a<br />
constitutional right to treatment in the least restrictive alternative. 860<br />
The provision in Minn. Stat. § 253B.18, subd. 2, for a 60-day report <strong>and</strong> review hearing<br />
following the initial commitment is not unconstitutional due to an insufficient time for the patient<br />
to improve his condition. 861<br />
The court <strong>of</strong> appeals has held that Rule 22 <strong>of</strong> the <strong>Commitment</strong> Rules, which allows the<br />
court to order a stay <strong>of</strong> commitment in an SPP or SDP case only with the agreement <strong>of</strong> both<br />
parties, does not violate the requirement <strong>of</strong> separation <strong>of</strong> powers. 862<br />
854<br />
In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)<br />
(unpublished), rejecting reasoning in C. Peter Erlinder, Of Rights Lost <strong>and</strong> Found: The Coming<br />
Restoration <strong>of</strong> the Right to a Jury Trial in Minnesota <strong>Civil</strong> <strong>Commitment</strong> Proceedings, 29 Wm.<br />
Mitchell L. Rev. 1269 (2003).<br />
855<br />
Poole v. Goodno, 335 F.3d 705, 710-11 (8th Cir. 2003); In re McEiver, No. A04-2002, 2005<br />
WL 704298, at *2 (Minn. Ct. App. Mar. 29, 2005) (unpublished); In re Sargent, No. A04-1767,<br />
2005 WL 406345, at *2 (Minn. Ct. App. Feb. 22, 2005) (unpublished); In re Johnson,<br />
No. A04-1361, 2005 WL 89862, at *4 (Minn. Ct. App. Jan. 18, 2005) (unpublished); In re<br />
Larsen, No. A03-1410, 2004 WL 1049844, at *6 (Minn. Ct. App. May 11, 2004) (unpublished).<br />
856<br />
Poole v. Goodno, 335 F.3d 705, 709-11 (8th Cir. 2003); In re Sargent, No. A04-1767, 2005<br />
WL 406345, at *2 (Minn. Ct. App. Feb. 22, 2005) (unpublished); In re Martin, No. A04-1634,<br />
2005 WL 354088, at *5 (Minn. Ct. App. Feb. 15, 2005) (unpublished); In re Johnson,<br />
No. A04-1361, 2005 WL 89862, at *4 (Minn. Ct. App. Jan. 18, 2005) (unpublished); In re<br />
Hartleib, No. A04-863, 2004 WL 2283558, at *2 (Minn. Ct. App. Oct. 12, 2004) (unpublished);<br />
McDeid v. Mooney, No. A04-36, 2004 WL 728133, at *3 (Minn. Ct. App. Apr. 6, 2004)<br />
(unpublished), review denied (Minn. May 26, 2004), cert. denied, 534 U.S. 1034 (2004).<br />
857<br />
In re McEiver, No. A04-2002, 2005 WL 704298, at *2 (Minn. Ct. App. Mar. 29, 2005)<br />
(unpublished).<br />
858<br />
In re McEiver, No. A04-2002, 2005 WL 704298, at *2-3 (Minn. Ct. App. Mar. 29, 2005)<br />
(unpublished); In re Sargent, No. A04-1767, 2005 WL 406345, at *2 (Minn. Ct. App. Feb. 22,<br />
2005) (unpublished).<br />
859<br />
In re Kindschy, 634 N.W.2d 723, 731 (Minn. Ct. App. 2001), review denied (Minn. 2001); In<br />
re Taylor, No. CX-02-1102, 2002 WL 31890941, at *6 (Minn. Ct. App. Dec. 31, 2002)<br />
(unpublished).<br />
860<br />
Woodruff v. O’Keefe, No. 00-Civ-2478, Rep’t & Recomm. at 15 (D. Minn. May 30, 2001).<br />
861<br />
In re Foster, No. A07-1564, 2008 WL 133918, at *5 (Minn. Ct. App. Jan. 15, 2008)<br />
(unpublished).<br />
862<br />
In re Domrose, No. A07-649, 2007 WL 2703154, at *4 (Minn. Ct. App. Sept. 18, 2007)<br />
(unpublished).<br />
116
The court <strong>of</strong> appeals rejected an argument that substantive due process or the prohibition<br />
against double jeopardy is violated when a person completes sex <strong>of</strong>fender treatment in prison<br />
but is nonetheless civilly committed as an SPP/SDP. 863<br />
The appellate court has held that Minn. Stat. § 253B.185, subd. 1b, which authorizes the<br />
district court to grant a county attorney’s motion for pre-petition access to records regarding a<br />
potential SPP/SDP respondent, is constitutional, at least as applied to a person referred for<br />
possible commitment by the Department <strong>of</strong> Corrections <strong>and</strong> where there is “substantial support<br />
in the DOC referral letter <strong>and</strong> assessment report for the referral <strong>of</strong> appellant as a possible<br />
c<strong>and</strong>idate for commitment.” 864 In a later case, the court upheld the constitutionality <strong>of</strong> the<br />
records-access provision against a claim that it violated substantive due process to provide the<br />
county attorney <strong>and</strong> court access to disclosures the proposed patient was required to make to<br />
successfully participate in prison sex <strong>of</strong>fender treatment. 865 Likewise, the admission <strong>of</strong> such<br />
admissions in prior treatment records into evidence has been held to be constitutional, not<br />
violative <strong>of</strong> substantive due process. 866<br />
863<br />
In re Braaten, No. A06-659, 2006 WL 2474274, at *4-7 (Minn. Ct. App. Aug. 29, 2006)<br />
(unpublished).<br />
864<br />
In re Bartholomay, No. C6-01-1104, 2001 WL 1645818, at *5 (Minn. Ct. App. Dec. 26,<br />
2001) (unpublished); see also In re Fugelseth, No. A03-1330, 2004 WL 422695, at *6-7 (Minn.<br />
Ct. App. Mar. 9, 2004) (unpublished).<br />
865<br />
In re Fugelseth, No. A03-1330, 2004 WL 422695, at *6-7 (Minn. Ct. App. Mar. 9, 2004)<br />
(unpublished)<br />
866<br />
In re Leas, No. A06-1234, 2006 WL 3071404, at *2-3 (Minn. Ct. App. Oct. 31, 2006)<br />
(unpublished).<br />
117