Civil Commitment of Sexual Psychopathic Personalities and ...

Civil Commitment of Sexual
Psychopathic Personalities and Sexually
Dangerous Persons in Minnesota
Legal Overview
JUNE 2010
By
John L. Kirwin
Assistant Hennepin County Attorney
Hennepin County Attorney’s Office
Minneapolis, Minnesota

TABLE OF CONTENTS
i
Page
I. PSYCHOPATHIC PERSONALITY COMMITMENTS....................................................1
A. Development of the Psychopathic Personality Commitment Standard ...................1
B. Habitual Course of Sexual Misconduct ...................................................................2
1. Remoteness of past sexual misconduct; gaps in sexual offenses.................2
2. Frequency and similarity of sexual misconduct...........................................3
3. Not all acts within habitual pattern must meet harmfulness standard .........5
4. Convictions not necessary; juvenile acts qualify.........................................6
C. Utter Lack of Power to Control Sexual Impulses ....................................................6
1. Necessity of expert testimony and court findings........................................6
2. “Mental illness,” lack of criminal responsibility, and “psychopathy” not
necessary......................................................................................................8
3. Blodgett factors ............................................................................................9
4. Planning/grooming does not preclude inability to control.........................11
5. Reoffense despite intent not to...................................................................12
6. Lack of insight showing inability to control..............................................13
7. Need not be out of control all the time ......................................................13
8. Misconduct despite consequences showing lack of control ......................15
II. SEXUALLY DANGEROUS PERSON COMMITMENTS .............................................17
A. Enactment of Sexually Dangerous Person Commitment Law...............................17
B. Course of Harmful Sexual Conduct.......................................................................18
C. Mental Disorder .....................................................................................................21
1. The statutory requirement..........................................................................21

2. Inability to adequately control ...................................................................23
III. COMMITMENT ISSUES UNDER BOTH STATUTES..................................................26
A. Harmful Nature of Sexual Misconduct..................................................................26
1. SPP Statute.................................................................................................26
a. Rickmyer standard for harmfulness................................................26
b. Conduct without completed sexual assault: HIV status,
exhibitionism, exposing, kidnapping .............................................27
c. Violence; likely harm greater than normal? Robb and Preston....28
d. What does “violence” mean, and how much harmfulness is
necessary, post-Robb and Preston?................................................31
e. Discussion of violence and harmfulness in cases preceding
Robb and Preston...........................................................................34
2. SDP statute—what is “sexual” conduct, standard for harmfulness, and
“rebuttable presumption” of harmfulness. .................................................38
3. SPP and SDP Laws: Injury to past victims not necessary ........................43
B. Likelihood of Harmful Sexual Conduct.................................................................45
1. Degree of likelihood ..................................................................................45
2. Assessment of likelihood of sexual reoffense............................................45
C. Least Restrictive Alternative..................................................................................51
D. Treatability and Availability of Treatment; Self-Incrimination In Treatment.......55
IV. PROCEDURAL ISSUES ..................................................................................................58
A. Department of Corrections Referral.......................................................................58
B. Criminal Procedures Not Applicable.....................................................................58
C. Petition ...................................................................................................................59
D. Parties to Proceeding..............................................................................................60
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E. Jurisdiction and Venue...........................................................................................60
F. Dual DOC/DHS Commitment ...............................................................................62
G. Prehearing Issues ...................................................................................................62
H. Privilege Against Self-Incrimination .....................................................................64
I. Pretrial Hold Orders...............................................................................................64
J. Discovery; Obtaining and Using Records..............................................................66
K. Independent Medical Examinations of Victims.....................................................69
L. Examiners and Expert Witnesses...........................................................................69
M. Attorney for Proposed Patient................................................................................73
N. Previous Plea Agreements .....................................................................................73
O. Collateral Estoppel Effect of Previous Commitment Proceedings and
Previous Criminal Proceedings..............................................................................74
P. Deadlines for Hearing............................................................................................75
Q. Trial........................................................................................................................76
R. Evidentiary Issues ..................................................................................................77
S. Standard of Proof; Evaluation of Evidence ...........................................................83
T. Findings..................................................................................................................84
U. Stipulation For Commitment .................................................................................85
V. Treatment Report And Review Hearing ................................................................86
W. Appeal ....................................................................................................................89
X. State Habeas Corpus ..............................................................................................95
V. CONSTITUTIONAL CHALLENGES..............................................................................97
A. PP Law...................................................................................................................97
1. Pearson v. Probate Court—Vagueness And Equal Protection .................97
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2. In re Blodgett—Substantive Due Process And Equal Protection ..............98
3. Validity of SPP law following Kansas v. Crane........................................99
4. Double Jeopardy Challenges....................................................................100
B. SDP Law ..............................................................................................................100
1. Linehan III—Substantive Due Process, Equal Protection, Ex Post
Facto And Double Jeopardy.....................................................................100
2. U.S. Supreme Court decision in Kansas v. Hendricks—Substantive
Due Process, Ex Post Facto And Double Jeopardy .................................102
3. Linehan IV—Substantive Due Process, Ex Post Facto And Double
Jeopardy In Light Of Hendricks ..............................................................105
4. Disposition of other cases, after Linehan IV............................................106
5. U.S. Supreme Court decision in Kansas v. Crane—Inability To
Control .....................................................................................................107
6. Cases Addressing Minnesota’s Laws Following Crane ..........................108
7. Other constitutional issues under SDP law..............................................110
C. Constitutional Challenges Applicable To Both Statutes......................................111
1. Standards of review and procedural requirements for constitutional
issues........................................................................................................111
2. Rulings on particular constitutional issues ..............................................112
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I. PSYCHOPATHIC PERSONALITY COMMITMENTS.
A. Development Of The Psychopathic Personality Commitment Standard.
In the 1939 psychopathic personality (“PP”) law, the Legislature defined the term
“psychopathic personality” as
the existence in any person of such conditions of emotional instability, or
impulsiveness of behavior, or lack of customary standards of good judgment, or
failure to appreciate the consequences of personal acts, or a combination of any
such conditions, as to render such person irresponsible for personal conduct with
respect to sexual matters and thereby dangerous to other persons. 1
Later that year, in a vagueness challenge to the PP law, the Minnesota Supreme Court in State ex
rel Pearson v. Probate Court 2 gave the statute a narrowing interpretation, holding that the law
would apply only to
those persons who, by a [1] habitual course of misconduct in sexual matters, have
evidenced an [2] utter lack of power to control their sexual impulses and who, as a
result, are [3] likely to attack or otherwise inflict injury, loss pain or other evil on
the object of their uncontrolled and uncontrollable desire.
Then, in 1994, along with the adoption of the “sexually dangerous person” statute
described below, the Legislature recodified the PP law, renaming it “sexual psychopathic
personality” (“SPP”) law and incorporating the Pearson definition:
“Sexual psychopathic personality” means the existence in any person of such
conditions of emotional instability, or impulsiveness of behavior, or lack of
customary standards of good judgment, or failure to appreciate the consequences
of personal acts, or a combination of any of these conditions, which render the
person irresponsible for personal conduct with respect to sexual matters, if the
person has evidenced by a [1] habitual course of misconduct in sexual matters, an
[2] utter lack of power to control the person’s sexual impulses and, as a result, is
[3] dangerous to other persons. 3
The Legislature expressly stated that this was to be a continuation of, and not a change in, the
prior law. 4
1
1939 Minn. Laws ch. 369, § 1.
2
State ex rel Pearson v. Probate Court, 287 N.W. 297, 302 (Minn. 1939), aff’d, 309 U.S. 270,
277 (1940).
3
Minn. Stat. § 253B.02, subd. 18b (2009).
4
1994 Minn. Laws, 1st Spec. Sess., art. 1, § 5(a).
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B. Habitual Course Of Sexual Misconduct.
The SPP law and the Pearson standard require that the person have engaged in a
“habitual course of misconduct in sexual matters.” 5 This standard raises two inquiries that must
be addressed to support a commitment. First, is the nature of the sexual misconduct sufficiently
harmful to justify commitment? Because the standard for harmfulness is related to the standard
in the Sexually Dangerous Person (“SDP”) law, it will be discussed in section III.A., below. The
second issue under the first SPP element is whether the person’s sexual misconduct is “habitual.”
1. Remoteness of past sexual misconduct; gaps in sexual offenses.
Proposed patients have challenged the allegation that their sexual misconduct was
“habitual,” arguing that it must have occurred recently. In Linehan I, 6 the supreme court found
the habitual course requirement satisfied even though the last sex offense occurred in 1975 and
the petition was filed in 1992. The appellate court in the same case reasoned that the gap in time
was relevant in determining the likelihood of future harm, not whether the course of sexual
misconduct was habitual. 7 Moreover, the court discounted Linehan’s lack of sexual misconduct
while imprisoned because “good behavior in the artificial atmosphere of a prison or hospital is
not determinative.” 8
A number of other decisions have ruled that the remoteness of the conduct does not
preclude commitment. In Linehan III, the court of appeals observed that the SPP law “allows the
state to establish a ‘habitual course of misconduct in sexual matters’ by evidence of remote acts
of misconduct.” 9 Although addressing the remoteness of the conduct in the context of the
likelihood of future dangerous behavior, the court of appeals in In re Pirkl 10 approvingly referred
to the trial court’s finding “rejecting Pirkl’s argument as to the lack of recency of his sexual
assaults, noting that he has been in a prison the last nine years and has not had the opportunity to
commit sexual assaults.” 11 A large gap of time between the most recent offense and the petition
does not preclude a determination that the actions were habitual. 12 In In re Cermak, 13 one of the
examiners posited that, while the respondent had engaged in a course of sexual misconduct many
years earlier, he had not had the opportunity to show that his conduct could change so it could
5 Minn. Stat. § 253B.02, subd. 18b (2009); Pearson, 287 N.W. at 302.
6 In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).
7 In re Linehan, 503 N.W.2d 142, 147 (Minn. Ct App. 1993), rev’d, 518 N.W.2d 609 (Minn.
1994).
8 Id.
9 In re Linehan, 544 N.W.2d 308, 312 (Minn. Ct. App. 1996), aff’d, 557 N.W.2d 171, 185 (Minn.
1996), vacated and remanded, 522 U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn.
1999).
10 In re Pirkl, 531 N.W.2d 902 (Minn. Ct. App. 1995).
11
Id. at 909.
12
In re J.L.D., No. C7-97-1879, 1998 WL 147859, at *1 (Minn. Ct. App. May 28, 1998)
(unpublished).
13
In re Cermak, No. A09-1080, 2009 WL 3736196, at *5 (Minn. Ct. App. Nov. 10, 2009)
(unpublished).
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not be said that the conduct was “habitual.” The trial court and court of appeals rejected the
argument, saying it “does not change the fact his course of harmful sexual conduct was habitual
in the first instance.” 14 Similarly, a large gap in time between the person’s previous offenses and
his last offense do not prevent all of the offenses from being considered a “habitual course” of
conduct. 15 Likewise, periods of time where there is no evidence of misconduct but the offender
was confined or on supervised release do not preclude a determination that the actions were
habitual. 16 In In re Sadiki, 17 the court of appeals held that, although commitment must rest on
the person’s current condition, the remoteness of the conduct does not preclude commitment,
especially when the person has been confined and lacked the opportunity to commit additional
offenses. 18 The appellate court later ruled, 19 when reviewing Sadiki’s indeterminate commitment
order, that reliance on past acts is appropriate and that the requirement of recent conduct in
Minn. Stat. § 253B.07, subd. 2, is not applicable to SPP commitments.
2. Frequency and similarity of sexual misconduct.
Aside from the remoteness of the sexual misconduct, proposed patients have challenged
whether the evidence could satisfy the habitual requirement where there were few instances of
sexual misconduct. In 1994, in In re Hince, 20 the court of appeals held that two rapes, six years
apart, did not constitute a habitual course of misconduct. The court referred to the dictionary
definition of “habitual as ‘done consistently or repeatedly’ or ‘established by long use.’” But in
a 2009 case, In re Rask, the appellate court upheld a finding of “habitual course” apparently
based on only two sexual offenses, four years apart. 21 The court relied on testimony of one
examiner that “habitual conduct is ‘repetitive, unfolds in the same behavioral form, and is
14 Id.
15 In re Fisher, No. A05-579, 2005 WL 2209079, at *8 (Minn. Ct. App. Sept. 13, 2005)
(unpublished).
16 In re Cox, No. A08-0910, 2009 WL 113397, at *6 (Minn. Ct. App. Jan. 20, 2009), review
denied (Minn. Mar. 31, 2009) (unpublished); In re Gleason, No. C2-97-2194, 1998 WL 218223,
at *1-2 (Minn. Ct. App. May 5,1998) (unpublished); In re Bobo, 376 N.W.2d 429, 432 (Minn.
Ct. App. 1985) (stating “good behavior in the artificial environment of a hospital is not
determinative on the issue of dangerousness to the public”).
17 In re Sadiki, No. C3-93-1045, 1993 WL 355906, at *2 (Minn. Ct. App. Sept. 14, 1993)
(unpublished), remanded (Minn. Jan. 24, 1995); aff’d after remand, No. C7-95-419, 1995 WL
311799 (Minn. Ct. App. May 23, 1995).
18 See also In re Patterson, No. C3-95-935, 1995 WL 550898, at *4 (Minn. Ct. App. Sept. 19,
1995) (unpublished) (remoteness of the past conduct does not disqualify it from being part of the
habitual course of sexual misconduct).
19 In re Sadiki, No. C4-93-2317, 1994 WL 111336, at *1 (Minn. Ct. App. Apr. 5, 1994)
(unpublished), remanded (Minn. Jan. 24, 1995); aff’d after remand, No. C7-95-419, 1995 WL
311799 (Minn. Ct. App. May 23, 1995).
20 In re Hince, No. C9-94-1366, 1994 WL 637755, at *1 (Minn. Ct. App. Nov. 15, 1994)
(unpublished).
21 In re Rask, No. A08-1312, A08-1551, 2009 WL 511943, at *2 (Minn. Ct. App. Feb. 26, 2009)
(unpublished).
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esistant to change,’” and that Rask’s conduct met that definition. 22 The other examiner
“emphasized that appellant’s offenses were committed ‘over a four year period of time despite
very significant intervention efforts.’” 23
In In re Givens, 24 the court upheld the finding of a habitual course of sexual misconduct
where the person committed only three sexual assaults—two sexual assaults in one day and then
a second 16 years later (following a 14-year prison term). And, for this purpose, the court found
two sexual assaults where the person committed a sexual assault and left the victim dying, and
then came back and raped her again the same day. 25 In finding the three acts to constitute a
habitual course of conduct, the court considered not only the number, but also the similarity, of
Givens’ assaults. 26 In In re Castonguay, 27 the appellate court held that three acts were sufficient
to constitute a habitual course, even where one of them was only an attempted sexual assault that
was thwarted. And in In re Larkin, 28 the court held that three assaults within a two-month
period, followed by sexual activity while in prison treatment, constituted a habitual course of
sexual misconduct “as a matter of law.”
In In re Meyer, 29 the court of appeals found clear and convincing evidence to support the
lower court’s conclusion that Meyer’s sexual offending was habitual based on the number of
victims, the number of years he had been offending, the significant period of incarceration, and
his relatively young age. The Meyer court also held that the passage of four or five years, during
which Meyer was confined, did not preclude the court from considering his earlier habitual
behavior, especially where he engaged in prohibited sexual behavior during that earlier time
period.
The court of appeals in In re Gleason 30 stated that, although Gleason’s sexual misconduct
involved more than one person, the law does not require multiple victims in order to meet the
“habitual course” standard.
The court in In re Bieganowski 31 found sexual conduct to be habitual based upon
“similarities between the incidents of sexual activity with children.” In dicta in a later reported
22 Id.
23 Id.
24 In re Givens, No. C4-02-995, 2002 WL 31554041, at *3 (Minn. Ct. App. Nov. 19, 2002)
(unpublished).
25 Id.
26 Id.
27 In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *5 (Minn. Ct. App. Dec. 15, 1999)
(unpublished).
28 In re Larkin, No. C9-99-382, 1999 WL 508655, at *2 (Minn. Ct. App. July 20, 1999)
(unpublished).
29
In re Meyer, No. C7-96-981, 1996 WL 537500, at *1 (Minn. Ct. App. Dec. 17, 1996)
(unpublished).
30
In re Gleason, No. C2-97-2194, 1998 WL 218223, at *2 (Minn. Ct. App. May 5, 1998)
(unpublished).
31 In re Beiganowski, 520 N.W.2d 525, 530 (Minn. Ct. App. 1994).
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decision involving only an SDP commitment, In re Stone, the appellate court said the “habitual
course” requirement of the SPP law requires that the incidents be similar.” 32 Some unpublished
appellate court decisions have said that Bieganowski or Stone requires that the acts in a “habitual
course” be similar, 33 while other cases state that “similarities are useful” in determining or “can
prove” whether the conduct was habitual. 34 In one case, citing Bieganowski, the court held that a
“habitual course of sexual misconduct requires similar incidents of misconduct or incidents that
form a pattern.” 35
The appellate court has looked at different factors to establish similarity of past offenses.
In In re Brinkman, the court said: “The district court found that appellant’s offenses are similar
in that appellant appears to have targeted vulnerable individuals who are less likely to report his
conduct to police and habitually kept lists of potential victims. These similarities establish a
pattern of conduct.” 36 In In re Benson, the court observed: “Although the ages of appellant’s
victims differed, the natures of the assaults against them were very similar. The victims were not
groomed; they were suddenly abused or attacked by appellant because he could not control his
sexual impulses. The record establishes a pattern of sexual assault with a progression of
boldness. Each of the victims was essentially helpless, and the harm suffered by each victim was
also similar.” 37
3. Not all acts within habitual pattern must meet harmfulness standard.
Where the person has committed acts meeting the harmfulness threshold, other acts may
be considered in establishing the habitual nature of the person’s sexual misconduct, even though
those acts do not themselves meet the harmfulness standard. 38
32 In re Stone, 711 N.W.2d 831, 837 (Minn. Ct. App. 2006) (dicta).
33 In re Green, No. A06-2272, 2007 WL 1532156, at *5 (Minn. Ct. App. May 29, 2007)
(unpublished); In re Eckman, No. A06-787, 2006 WL 2807205, at *6 (Minn. Ct. App. Oct. 3,
2006) (unpublished); In re Gorden, No. A06-43, 2006 WL 1806464, at *6 (Minn. Ct. App.
July 3, 2006) (unpublished).
34 In re Hilton, No. A06-2261, 2007 WL 1532151, at *4 (Minn. Ct. App. May 29, 2007)
(unpublished); In re Fisher, No. A05-579, 2005 WL 2209079, at *8 (Minn. Ct. App. Sept. 13,
2005) (unpublished).
35 In re Alverson, No. A06-1567, 2007 WL 447159, at *9 (Minn. Ct. App. Feb. 13, 2007)
(unpublished).
36 In re Brinkman, No. A08-1077, 2008 WL 5058637, at *6 (Minn. Ct. App. Dec. 2, 2008)
(unpublished).
37 In re Benson, No. A08-0793, 2008 WL 4850153, at *3 (Minn. Ct. App. Nov. 3, 2008)
(unpublished).
38 In re Alverson, No. A06-1567, 2007 WL 447159, at *6, 9 (Minn. Ct. App. Feb. 13, 2007)
(unpublished) (stating that person’s “returning to his cycle” of sexual assault by contacting
minors on the internet, using alcohol, accessing and possessing pornography could be considered
part of “habitual course,” even though it was not completed harmful sexual conduct); In re
Hommes, No. C2-00-831, 2001 WL 15754, at *2 (Minn. Ct. App. Jan. 9, 2001) (unpublished)
(holding that telephoning and befriending young girls was part of grooming pattern, even though
in some cases it did not lead to completed sexual misconduct).
5

4. Convictions not necessary; juvenile acts qualify.
Convictions are not necessary to prove a habitual course of sexual misconduct. Rather
the courts look to the person’s history of sexual misconduct behavior regardless of the existence
of any convictions for that behavior. 39 Under the SDP law, the court of appeals has held that a
course of harmful sexual conduct was proven even where the person had no criminal convictions
for his conduct. 40 Our federal district court has held that the federal constitution does not require
prior criminal convictions, or even that the person’s conduct that supports commitment would
violate criminal statutes. 41
Because of the higher standard of proof in criminal cases, an act may be proved in a civil
commitment case even though the person has been acquitted of the act in a criminal
prosecution. 42
Some proposed patients have argued that acts committed as a juvenile may not support an
SPP (or SDP) commitment. The court of appeals has held that there is no constitutional or other
support for this argument. 43
C. Utter Lack Of Power To Control Sexual Impulses.
1. Necessity of expert testimony and court findings.
The SPP law requires that the person must have an “utter lack of power to control [his]
sexual impulses.” 44 For a short period, there was significant litigation and confusion as to the
meaning of this requirement. This began with the June 1994 decision in In re Linehan
39 In re Monson, 478 N.W.2d 785, 789 (Minn. Ct. App. 1991) (stating “statute does not address
convictions but behavior”); In re Alverson, No. A06-1567, 2007 WL 447159, at *5 (Minn. Ct.
App. Feb. 13, 2007) (unpublished); In re Benson, No. C4-02-2004, 2003 WL 21500189, at *3
(Minn. Ct. App. July 1, 2003) (unpublished); In re Larson, No. C6-97-2215, 1998 WL 236167, at
*3 (Minn. Ct. App. May 12, 1998) (unpublished); In re Mathews, No. C6-95-749, 1995 WL
421702, at *2 (Minn. Ct. App. July 18, 1995) (unpublished); In re Patterson, No. C3-95-935,
1995 WL 550898, at *4 (Minn. Ct. App. Sept. 19, 1995) (unpublished).
40 In re Moore, No. A09-0623, 2009 WL 2747980, at *2-3 (Minn. Ct. App. Sept. 1, 2009),
review denied (Minn. Nov. 17, 2009) (unpublished).
41 Martin v. Mooney, No. 06-1605 DSD/RLE, 2007 WL 1306409, at *13-14 (D. Minn. May 3,
2007).
42 In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (involving mentally ill and dangerous
commitment).
43 In re Welin, No. C1-99-84, 1999 WL 410365, at *2 (Minn. Ct. App. June 22, 1999)
(unpublished); In re Anderson, No. C8-98-976, 1998 WL 727734, at *5 (Minn. Ct. App. Oct. 20,
1998) (unpublished); In re Hoium, No. C8-98-469, 1998 WL 531814, at *5 (Minn. Ct. App.
Aug. 25, 1998) (unpublished).
44 Pearson, 287 N.W. at 302; Minn. Stat. § 253B.02, subd. 18b (2009).
6

(Linehan I), 45 in which the Minnesota Supreme Court reversed a PP commitment, holding that
the county had failed to prove by clear and convincing evidence that the proposed patient had an
utter lack of power to control his sexual impulses. 46 In so doing, the court emphasized the
importance of the Pearson utter-lack-of-power-to-control test. 47 The court’s concern arose
because the expert witnesses were questioned in terms of the pre-1994 statutory standard, rather
than the Pearson standard. 48 The Linehan I court said the Pearson definition must be followed
and cases that misapplied the statute as narrowed in Pearson should be reversed. 49
Just months earlier in In re Blodgett, 50 however, the supreme court had found no need to
reverse or remand the decision of the lower court, even though the trial judge’s findings followed
the pre-1994 statutory language rather than the Pearson test. Instead, Blodgett construed the trial
court’s findings in view of the evidence to accord with the Pearson test. 51 The supreme court
and the court of appeals have been somewhat inconsistent in how to address the situation where
the lower court did not make findings in terms of Pearson. 52
45 In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).
46 Id. at 614. Justice Gardebring dissented from the court’s decision, contending that the Pearson
standard had been met. However, she argued that a system under which a person is criminally
responsible for his acts, but is subsequently found to have been utterly unable to control them, “is
both logically and legally inconsistent, and fundamentally unfair.” 518 N.W.2d at 615. She
noted that Linehan’s criminal conviction for kidnapping and attempted rape was based on intent
or mens rea. Because a civil commitment is based upon inability to control sexual impulses—a
form of diminished intent—she argued that the criminal conviction and the civil commitment
offer inconsistent explanations for the same behavior. Id.
47 Id.
48 Id. at 614.
49 Id. at 610.
50 In re Blodgett, 510 N.W.2d 910, 917 (Minn. 1994).
51 Id.
52 In re Kunshier, 521 N.W.2d 880, 885 (Minn. Ct. App. 1994) (lacking guidance of Linehan I
and Blodgett, district court made findings in terms of the pre-1994 PP statute, and failed to apply
limiting language of Pearson; nonetheless, court of appeals remanded for additional hearing and
findings on whether Kunshier had utter lack of power to control sexual impulses); In re Toulou,
No. C9-94-993, 1994 WL 593907, at *3 (Minn. Ct. App. Nov. 1, 1994) (unpublished)
(remanding to lower court for additional findings regarding utter lack of power to control where
court made inconsistent findings as to whether Toulou was unable to control his sexual
impulses); cf. In re Holly, No. C9-94-492, 1994 WL 396314, at *2 (Minn. Ct. App. Aug. 2,
1994) (unpublished) (citing Blodgett, appellate court affirmed PP commitment, even though
lower court’s order had not used utter-lack-of-power-to-control language, because evidence
supported determination that appellant met standard); In re Hendrickson, C6-92-1790, 1992 WL
383446, at *1 (Minn. Ct. App. Dec. 29, 1992) (unpublished) (stating that trial court’s failure to
render findings in exact language of utter lack of power to control sexual impulses is not
determinative where the findings and record provide clear and convincing evidence that the
standard is actually met); Kruger v. Comm’r of Human Servs., No. C4-95-1866, 1996 WL 5786,
at *2 (Minn. Ct. App. Jan. 9, 1996) (unpublished) (in state court habeas action by person
committed as PP, stating it was not fatal to constitutionality of the commitment that trial court’s
7

The necessity of expert testimony that the person lacks the ability to control his sexual
impulses has also been unclear. The supreme court in Linehan I held that whether a person has
an utter lack of power to control is a legal matter, rather than a factual issue. 53 Subsequently,
however, in In re Mentzos, 54 the court of appeals reversed the district court’s conclusion that the
appellant had an utter lack of power to control, apparently because all of the experts who had
addressed that issue had concluded that Mentzos did not meet the requirement. But in a later
case, In re Luhmann, 55 the appellate court upheld a district court decision finding utter lack of
power to control despite the fact that both examiners had concluded that the requirement was not
met.
Consider also a 1972 state supreme court decision in Keiser v. Sheppard. 56 In Keiser, the
two examiners had both found that the proposed patient met the commitment requirements for
commitment as a PP. The trial judge disagreed, but nonetheless committed the patient, believing
that he was “outvoted” and therefore bound by the decisions of the two examiners. The supreme
court overturned the commitment, saying:
We think it clear that the legislature intended the probate judge to have the
exclusive authority to determine whether the patient was a psychopathic
personality and that the examining doctors functioned only as expert witnesses
rather than as coequal members of a judicial tribunal. 57
2. “Mental illness,” lack of criminal responsibility, and “psychopathy”
not necessary.
The SPP law does not require that the person be “mentally ill” as that term might
ordinarily be used. 58 Similarly, the fact that the person was found to be criminally responsible
(i.e., not qualifying for the insanity defense) or competent to stand trial in a criminal case does
not contradict a finding that he meets the disorder requirement of the SPP law. 59
findings did not recite Pearson standard, where it was clear from the record that the trial court
and the witnesses had considered that standard).
53
Linehan I, 518 N.W.2d at 613.
54
In re Mentzos, No. C3-95-2331, 1996 WL 81721, at *4-5 (Minn. Ct. App. Feb. 27, 1996)
(unpublished).
55
In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn. Ct. App. Aug. 28, 2007)
(unpublished).
56 Keiser v. Sheppard, 194 N.W.2d 286 (Minn. 1972).
57 Id. at 288.
58 In re Blodgett, 510 N.W.2d 910, 914 (Minn. 1994); In re Holden, No. C1-00-2229, 2001 WL
683004, at *2 (Minn. Ct. App. June 19, 2001) (unpublished).
59 In re Linehan (Linehan III), 557 N.W.2d 171, 183, vacated and remanded, 522 U.S. 1011
(1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999) (uncontrollable impulse not a defense
to a crime); In re Holden, No. C1-00-2229, 2001 WL 683004, at *6 (Minn. Ct. App. June 19,
2001) (unpublished) (finding of criminal competency no bar to SPP commitment).
8

A person need not be a “psychopath” as measured on a commonly used instrument for
assessing psychopathy, the PCL-R, in order to be committed as an SPP. 60 Conversely, the fact
that the person is a “psychopath” as measured by the PCL-R does not mean the person satisfies
the SPP commitment definition; “even though the names ‘sexual psychopathic personality’ and
‘clinical psychopath’ are similar, they are not the same thing.” 61
3. Blodgett factors.
In upholding the constitutionality of the PP law, the Minnesota Supreme Court in In re
Blodgett 62 found that “the psychopathic personality statute identifies a volitional dysfunction
which grossly impairs judgment and behavior with respect to the sex drive.” 63 The supreme
court set out the following list of factors to consider in determining whether a person meets the
Pearson standard:
In applying the Pearson test, the court considers the nature and frequency of the
sexual assaults, the degree of violence involved, the relationship (or lack thereof)
between the offender and the victims, the offender’s attitude and mood, the
offender’s medical and family history, the results of psychological and psychiatric
testing and evaluation, and such other factors that bear on the predatory sex
impulse and the lack of power to control it. 64
Since Blodgett and Linehan, the court of appeals has routinely cited this list of factors when
evaluating a claim that the commitment petitioner has not shown an utter lack of power to
control. 65
It might be suggested, however, that the Blodgett factors are not the most sensible
indicators of inability to control sexually predatory behavior. Whether the petitioner had shown
utter lack of power to control was not at issue before the supreme court in Blodgett, and the
court’s list of factors relating to inability to control was not taken from the parties’ argument or
from any other identified source. It is unclear what bearing some of the Blodgett factors, such as
relationship between offender and victim and the offender’s medical and family history, have on
inability to control. Experts in SPP cases have struggled to tie some of the Blodgett factors to
inability to control. In In re Love, for example, the court of appeals commented that one of the
60
In re Kirckof, No. A06-956, 2006 WL 3007995, at *7 (Minn. Ct. App. Oct. 24, 2006)
(unpublished); In re Luhmann, No. A07-912, 2007 WL 2417341, at *5 (Minn. Ct. App. Aug. 28,
2007) (unpublished).
61
In re Whitley, No. A09-1898, 2010 WL 1192307, at *6-7 (Minn. Ct. App. March 30, 2010)
(unpublished).
62
In re Blodgett, 510 N.W.2d 910 (Minn. 1994).
63 Id. at 915.
64 Id.
65 See, e.g., In re Fugelseth, No. A03-1330, 2004 WL 422695, at *8 (Minn. Ct. App. Mar. 9,
2004) (unpublished); In re Carner, No. A03-577, 2003 WL 22481102, at *2 (Minn. Ct. App.
Nov. 4, 2003) (unpublished); In re Rubin, No. C5-02-570, 2002 WL 31111248, at *3 (Minn. Ct.
App. Sept. 24, 2002) (unpublished).
9

experts, on whom the trial court relied heavily, testified that degree of violence “was not
particularly helpful” in determining inability to control in the case of pedophiles, and that “it was
difficult to make the connection between family history and lack of control.” 66 Moreover, it is
not entirely clear from Blodgett whether the court’s list of factors was directed solely to the
utter-lack-of-power-to-control element, or whether the court intended the factors to address all
three of the Pearson commitment requirements.
Likely because of this difficulty, the court of appeals has held that the Blodgett factors
must be used in a considered way. Although the court in In re Kubec 67 noted that the Blodgett
factors are not dicta and are to be used in applying the Pearson test, it cautioned that “the
Blodgett factors are not a checklist” and “the district court is to decide, based on the evidence,
which factors are relevant in the particular case.” The court indicated that “the factors and all
the evidence should be considered as a whole.”
As noted above, one of the Blodgett factors is “the degree of violence involved” in the
person’s past sexual misconduct. 68 Proposed patients sometimes argue that physical violence is
necessary to show an utter lack of power to control. However, the court of appeals has held that,
in using the term “violence,” the supreme court was referring to the standard later announced in
In re Rickmyer, 69 requiring that the conduct create a substantial likelihood of serious physical or
mental harm to the victims; thus acts of a pedophile or other offender who did not employ
physical violence may meet the statutory requirement, and any requirement imposed by the
Blodgett factors. 70 The court of appeals has held that, while the absence of overt physical
violence may weigh against a finding of utter lack of power to control, that fact is not dispositive
and other factors may support the lack-of-control finding. 71
In another case, the appellate court explained that the Blodgett factor addressing the
offender’s “mood and attitude” may include the lack of insight described below. 72
66 In re Love, No. C4-98-2076, 1999 WL 243602, at *2-3 (Minn. Ct. App. Apr. 27, 1999)
(unpublished).
67 In re Kubec, C9-97-1673, 1998 WL 27295, at *2 (Minn. Ct. App. Jan. 27, 1998)
(unpublished).
68 Blodgett, 510 N.W.2d at 915.
69 In re Rickmyer, 519 N.W.2d 188, 190 (Minn. 1994).
70 In re Williams, No. A05-1271, 2005 WL 3470517, at *6 (Minn. Ct. App. Dec. 20, 2005)
(unpublished); In re Hoium, No. C2-98-469, 1998 WL 531814, at *3 (Minn. Ct. App. Aug. 25,
1998) (unpublished); In re Poole, Nos. C4-00-85 & C8-00-171, 2000 WL 781381, at *3 (Minn.
Ct. App. June 20, 2000) (unpublished); In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn.
Ct. App. Jan. 9, 2001) (unpublished).
71 In re Williams, No. A05-1271, 2005 WL 3470517, at *6 (Minn. Ct. App. Dec. 20, 2005)
(unpublished).
72 In re Love, No. C4-98-2076, 1999 WL 243602, at *3 (Minn. Ct. App. Apr. 27, 1999)
(unpublished).
10

4. Planning/grooming does not preclude inability to control.
Initially, the Minnesota Supreme Court seemed to indicate that a proposed patient’s
planning behavior may preclude a finding of utter lack of power to control his sexual impulses.
In finding a failure to prove utter lack of power to control sexual impulses, the Linehan I court
emphasized expert testimony that Linehan’s behavior leading up to a sexually motivated
kidnap/murder was “planned” and “planful.” 73 This testimony about planned behavior, together
with the failure to question any of the experts in terms of the Pearson
utter-lack-of-power-to-control standard, proved fatal on appeal. In subsequent decisions,
however, with one exception, the appellate court has concluded that planned or planful behavior
is not inconsistent with an utter lack of power to control one’s sexual impulses.
In In re Schweninger, issued shortly after Linehan I, the court of appeals held that a
pedophile’s “classic grooming behavior,” “plotting, planning” and “seduction” were inconsistent
with an utter lack of power to control, and reversed his commitment. 74 But despite the Linehan I
and Schweninger courts’ conclusion that planning and grooming are inconsistent with an utter
lack of power to control sexual impulses, thereafter the courts have reconciled evidence of the
proposed patient’s planning with a finding of utter lack of power to control sexual impulses. By
2002, the appellate court observed: “The case law is clear, however, that such [grooming]
behavior in a pedophile does not preclude a finding of utter lack of power to control sexual
impulses.” 75
The week after Schweninger, the same panel of the court of appeals in In re Bieganowski
found an utter lack of power to control, even though the appellant had engaged in “grooming”
behavior with his victims. 76 The court said:
Although the “grooming” process requires time, thus eliminating any
“suddenness” regarding the sexual activity, the habitual nature of appellant’s
predatory sexual conduct indicates an inability to stop the “grooming” behavior.
The trial court reasoned that appellant’s failure to remove himself from situations
that provide the opportunity for similar offenses, and his failure to avoid
precursors that trigger his impulsive behavior, such as consumption of large
quantities of alcohol, demonstrate his lack of control. 77
The court of appeals reached similar conclusions in a number of other cases. In In re Preston,
the court said: “Though grooming and planning behavior can show the ability to control the
sexual impulse, where the grooming behavior itself is uncontrollable, the impulse is likewise not
controllable.” 78 In In re Adolphson, the court of appeals held that a pedophile’s “grooming”
73
Linehan I, 518 N.W.2d at 612-13 (Minn. 1994).
74
In re Schweninger, 520 N.W.2d 446, 450 (Minn. Ct. App. 1994).
75
In re Rubin, No. C5-02-570, 2002 WL 31111248, at *4 (Minn. Ct. App. Sept. 24, 2002)
(unpublished).
76
In re Bieganowski, 520 N.W.2d 525 (Minn. Ct. App. 1994).
77
Id. at 530.
78
In re Preston, 629 N.W.2d 104, 111 (Minn. Ct. App. 2001).
11

ehavior does not preclude a finding of utter lack of power to control, “where there is an inability
to stop such behavior.” 79 The court explained:
The fact that appellant engaged in “grooming” behavior does not preclude a
finding of utter lack of power to control, where there is an inability to stop such
behavior and other indications of lack of control. Appellant’s behavior, which has
elements of both control and impulse, appears to be a paradox, but closer
examination reveals this is not the case. The planning and sex acts are a single
unit of compulsive behavior, triggered by the presence of young males, and
played out in a predictable sequence of events. 80
In In re Pirkl, a PP commitment was upheld even though appellant’s actions involved a
“fair amount of planning and deliberateness.” 81
In In re Young, the court of appeals held again that a pedophile’s grooming of his victims
does not preclude a finding of utter lack of power to control sexual impulses. 82 Similarly, the
court of appeals in In re Hart, held that a pedophile who used “isolation, bribes, threats, force,
and alcohol” to approach, groom, and molest children met the utter-lack-of-power-to-control
standard. 83 In In re Mayfield, the court found an utter lack of power to control even though
appellant stalked his victims and his actions were “deliberate to some degree.” 84
5. Reoffense despite intent not to.
The U.S. Supreme Court has observed that the most obvious manifestation of inability to
control is the situation where the person wishes to avoid the sexual assaults but cannot control
his strong urges to do so. 85 Our court of appeals has found inability to control in such
situtations. 86 But the high Court also recognized that inability to control may also be manifested
in other ways. 87
79
In re Adolphson, No. C5-95-533, 1995 WL 434386 (Minn. Ct. App. July 25, 1995)
(unpublished).
80
Id. (citation omitted).
81
In re Pirkl, 531 N.W.2d 902, 905 (Minn. Ct. App. 1995).
82
In re Young, No. C1-94-1779, 1994 WL 654508, at *2 (Minn. Ct. App. Nov. 22, 1994)
(unpublished).
83
In re Hart, No. C9-95-2057, 1996 WL 56504, at *2-3 (Minn. Ct. App. Feb. 9, 1996)
(unpublished), summ. aff’d (Minn. Jan. 21, 1997).
84
In re Mayfield, No. C2-95-103, 1995 WL 254407, at *3 (Minn. Ct. App. May 2, 1995)
(unpublished).
85
Kansas v. Crane, 534 U.S. 407, 414-15, 122 S. Ct. 867, 871 (2002).
86
In re Daniels, No. A03-623, 2003 WL 22707418, at *5 (Minn. Ct. App. Nov. 18, 2003)
(unpublished).
87
Crane, 534 U.S. at 415, 122 S. Ct. at 871-72.
12

6. Lack of insight showing inability to control.
A number of decisions have held that an offender’s lack of insight into his sexual
misconduct and the harm it produces relates to an inability to control sexual impulses. In In re
Irwin, the court of appeals credited expert testimony that
an important factor in determining whether one has power to control sexual
impulses is whether the person feels he has a problem; if so, he at least has some
control since he knows he is flawed, and may be more vigilant in seeking
assistance . . . . Without this basic insight, appellant has the utter lack of control
required by Pearson. 88
The court in In re Adolphson concluded that appellant’s lack of insight and remorse showed he
had an utter lack of power to control. The court stated that Adolphson was aware that his
conduct was against the law, yet had an “entrenched belief” that sexual activity with young boys
was acceptable and was convinced that “he has provided a service to young men, and that the
law is wrong. This complete lack of will shows he continues to have an utter lack of control.” 89
Other court of appeals decisions have also relied, at least in part, upon evidence of lack of insight
to support a finding of utter lack of power to control sexual impulses. 90
7. Need not be out of control all the time.
The confusion about the meaning of utter lack of power to control arose in large part
from the practice of placing a testimonial/evidentiary burden upon psychologists to address an
issue that is legal, rather than psychiatric, in character. As the court of appeals explained in
Adolphson, “any confusion as to whether Adolphson continued to demonstrate an utter lack of
control arose from the fact that the psychiatric definition of control is much narrower than the
legal definition.” 91 For example, in In re Patterson, the court of appeals rejected an overly literal
interpretation of “utter” lack of power to control presented by a psychologist who “limited his
88
In re Irwin, 529 N.W.2d 366, 375 (Minn. Ct. App. 1995).
89
In re Adolphson, No. C5-95-533, 1995 WL 434386, at *4 (Minn. Ct. App. July 25, 1995)
(unpublished).
90
In re Sadiki, No. C4-93-2317, 1994 WL 111336 (Minn. Ct. App. Apr. 5, 1994) (unpublished),
remanded (Minn. Jan. 24, 1995); aff’d after remand, No. C7-95-419, 1995 WL 311799 (Minn.
Ct. App. May 23, 1995) (finding an utter lack of power to control where evidence showed
proposed patient committed habitual sex offenses, has no insight into his condition, does not
believe he needs treatment, and continues to be hostile, angry, and dangerous); In re Sadiki, No.
C7-95-419, 1995 WL 311799 (Minn. Ct. App. May 23, 1995) (unpublished) (on remand from
supreme court to reconsider in light of Rickmyer and Linehan, Sadiki found unable to control his
sexual impulses due in part to his failure to understand his propensity towards violence and
rape); In re Larson, No. C6-97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998)
(unpublished) (utter lack of power to control sexual impulses shown by evidence of impulsivity,
desire for vengeance, denial of wrongdoing, and lack of treatment).
91
In re Adolphson, No. C1-94-146, 1994 WL 200601 (Minn. Ct. App. May 24, 1994)
(unpublished).
13

definition of lack of control only to those very extreme examples of persons who had cognitive
deficits arising from conditions such as severe mental retardation, dementia, or organic brain
damage, which meant no individual presently committed would meet his standard.” 92 The court
concluded that this definition was not consistent with that of the supreme court. Similarly, the
court in In re Kunshier held that a definition of “utter lack of power to control, which would be
limited to those individuals who suffer conditions such as psychosis, sleep walking or brain
seizures,” “is inconsistent with the supreme court’s discussion in Blodgett.” 93
In Pirkl, the court of appeals held that a person could meet the
utter-lack-of-power-to-control standard without being out of control all the time. 94 The court
noted expert testimony that
Pirkl is capable of controlling his behavior in a courtroom. If there is a situation
in which Pirkl feels rejected or abandoned, however, his anger will be rekindled
and in his moment of rage, he will be in a state of impulsivity and emotional
instability with a profound probability of acting out. 95
In In re Irwin, the court of appeals upheld a finding of utter lack of control, noting testimony that
the appellant “reaches a point were there is an utter lack of power to control impulses (as
opposed to having an utter lack of control every minute of the day).” 96 Similarly, the court in In
re Toulou held that it is not necessary, in order to find an utter lack of power to control, that the
person’s sexual impulses be uncontrollable all the time. The court said:
[T]he trial court accepted expert testimony that no one has a total lack of control
in the sense of never being able to control one’s impulses. The trial court cited
testimony that Toulou was like a wild, predatory animal, which will strike when it
is hungry and when prey is available unless deterred by other larger predators.
The court found that Toulou is “totally dependent on external forces to conform to
society’s mores” and that a “removal of those external controls, however, will
predictably result in [Toulou] acting on his impulses.” 97
The court of appeals in In re Mattson found that the appellant showed an utter lack of
control when he acted out sexually, although he did not do so 24 hours a day. The court
explained: “Lack of control is situational and will occur when the impulses arise or manifest
themselves.” 98 In In re Krueger, the appellate court cited testimony of an expert witness that,
“given an available victim, available means, and available circumstances, appellant is utterly
92
In re Patterson, No. C3-95-935, 1995 WL 550898 (Minn. Ct. App. Sept. 19, 1995)
(unpublished).
93
In re Kunshier, No. C7-95-1490, 1995 WL 687692 (Minn. Ct. App. Nov. 21, 1995)
(unpublished).
94
In re Pirkl, 531 N.W.2d 902 (Minn. 1995).
95
Id. at 905.
96
In re Irwin, 529 N.W.2d 366, 375 (Minn. Ct. App. 1995).
97
In re Toulou, No. C0-94-2518, 1995 WL 265071 (Minn. Ct. App. May 9, 1995) (unpublished).
98
In re Mattson, No. C8-95-2423, 1996 WL 167638 (Minn. Ct. App. Apr. 9, 1996)
(unpublished).
14

unable to control his sexual behaviors.” 99 In In re Hommes, the court of appeals noted that,
“once the opportunity for sexual behavior presented itself, Hommes did not have the ability to
control his impulses.” 100
In In re Preston, the appellate court held that lack of reoffense while a person was
released on bail for a 10-month period was insufficient to demonstrate he did not have an utter
lack of power to control. 101 And in In re Rubin and In re Carner, the court held that failure to
reoffend or act out sexually while in prison does not demonstrate that the person has the ability
to control his sexual behavior. 102 Similarly, in In re Hammermeister, the court held that a period
of 12 years since the person’s last offense did not preclude a finding of utter lack of power to
control, saying that, because the respondent had been incarcerated or in residential treatment the
majority of the time, “his opportunity to reoffend has been minimal.” 103
In In re Eberhart, the appellate court upheld a finding of utter lack of power to control
even though the person had been released to the community for periods totaling five years since
his last sex offense. 104
8. Misconduct despite consequences showing lack of control.
A number of courts have found that a person’s failure to respond to consequences for his
sexual misconduct reflects an utter lack of control of sexual impulses. In Kunshier, the court of
appeals emphasized that the appellant had committed sexual assaults without regard to
consequences, noting he had committed
some of these acts while on probation, after escaping from custody, and during or
after completing sex offender programming. His assaults have been committed
within a day or a week of being released from or escaping from custody . . . . He
rapes while actively fleeing pursuing peace officers. His sexual impulses override
any normal fear of capture or consequences, and he has admitted feeling
“fearless” while committing these assaults. The trial court found appellant is
“totally dependent” upon confinement to control his sexual impulses. 105
99 In re Krueger, No. C3-96-2503, 1997 WL 206802, at *4 (Minn. Ct. App. Apr. 29, 1997)
(unpublished).
100 In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn. Ct. App. Jan. 9, 2001) (unpublished).
101 In re Preston, 629 N.W.2d 104, 111 (Minn. Ct. App. 2001).
102 In re Rubin, No. C5-02-570, 2002 WL 31111248, at *4 (Minn. Ct. App. Sept. 24, 2002)
(unpublished); In re Carner, No. A03-577, 2003 WL 22481102, at *3 (Minn. Ct. App. Nov. 4,
2003) (unpublished).
103 In re Hammermeister, No. A08-1461, 2009 WL 367372, at *8 (Minn. Ct. App. Feb. 17, 2009)
(unpublished).
104 In re Eberhart, No. A06-2044, 2007 WL 738719, at *3 (Minn. Ct. App. Mar. 13, 2007)
(unpublished).
105 In re Kunshier, No. C7-95-1490, 1995 WL 687692 (Minn. Ct. App. Nov. 21, 1995)
(unpublished).
15

Equally brazen, perhaps, was the appellant in In re Crocker. 106 He engaged in sexually
inappropriate or criminal behavior even when it was almost inevitable he would be caught; he
committed offenses while on parole or probation; he was implicated with sexually inappropriate
behavior while confined; he sexually assaulted one woman who escaped, and then raped her
friend while the first woman called authorities; he molested a child a second time three months
after his release from prison for molesting her the first time. 107
In In re Mattson, the court of appeals cited expert testimony that “the utter lack of control
was demonstrated by the fact that, even when appellant was in a structured setting, he had
difficulty refraining from the use of pornography” and “when a person engages in behavior
despite repeated consequences, it evidences a lack of control.” 108 Similar facts were considered
in In re Love, where the proposed patient had acted out sexually even while in prison treatment
programs where discovery was likely. 109
As illustrated above, a prime example of an utter lack of power to control one’s sexual
impulses is to sexually reoffend or act out inappropriately shortly after release from confinement
or while in treatment. 110
106 In re Crocker, No. C0-95-2500, 1996 WL 192974 (Minn. Ct. App. Apr. 23, 1996)
(unpublished), summ. aff’d (Minn. Jan. 21, 1997).
107 In re Crocker, No. C7-97-604, 1997 WL 471481 (Minn. Ct. App. Aug. 19, 1997)
(unpublished), summ. aff’d (Minn. Jan. 21, 1997) (court also found significant his lack of
selectivity in his victims—children and adults, usually female but also males when only they
were available).
108 In re Mattson, No. C5-95-452, 1995 WL 365374 (Minn. Ct. App. June 20, 1995)
(unpublished).
109 In re Love, No. C4-98-2076, 1999 WL 243602, at *3 (Minn. Ct. App. Apr. 27, 1999)
(unpublished).
110 In re Anderson, No. A06-2008, 2007 WL 824019, at *4 (Minn. Ct. App. Mar. 20, 2007)
(unpublished), (court citing examiner’s testimony regarding appellant’s repeated harmful sexual
conduct despite negative consequences); In re Rubin, No. C5-02-570, 2002 WL 31111248, at *4
(Minn. Ct. App. Sept. 24, 2002) (unpublished) (finding utter lack where person reoffended
during treatment and repeatedly acted out despite severe consequences; court also cited number
and continuous nature of offenses); In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *7
(Minn. Ct. App. Dec. 15, 1999) (unpublished) (offended after correctional sanctions, and even
while in prison); In re Fitzpatrick, No. C1-94-1409, 1994 WL 586962 (Minn. Ct. App. Oct. 25,
1994) (unpublished) (finding an utter lack of power to control sexual impulses where offender
exhibited recent inappropriate behavior while incarcerated and had not successfully received sex
offender treatment); In re Mayfield, No. C8-94-1407, 1994 WL 593885 (Minn. Ct. App. Nov. 1,
1994) (utter lack of power to control sexual impulses found where offender exhibited lack of
judgment, emotional instability and impulsive behavior while incarcerated and committed
numerous sexual assaults immediately upon release from prison; court also found lack of control
based upon commission of multiple sexual assaults that included force and threats to kill,
choosing his victims by chance, and failing to complete chemical dependency treatment even
though his chemical dependency caused his impulsivity); In re Edstrom, No. C2-95-2448, 1996
WL 132141 (Minn. Ct. App. Mar. 26, 1996) (unpublished), summ. aff’d (Minn. Jan. 21, 1997)
16

II. SEXUALLY DANGEROUS PERSON COMMITMENTS.
A. Enactment Of Sexually Dangerous Person Commitment Law.
Because of the various challenges to the constitutionality and application of the PP law,
the 1994 Legislature created a task force “to study issues relating to the confinement of sexual
predators, including commitment of psychopathic personalities.” 111 The Legislature met in
special session on August 31, 1994, and enacted statutory amendments essentially as
recommended by the Task Force. 112 The legislation added an additional commitment category to
Minnesota’s Civil Commitment and Treatment Act, Minn. Stat. ch. 253B. The new commitment
category was for a “sexually dangerous person” or “SDP”: 113
Subd. 18c. SEXUALLY DANGEROUS PERSON. (a) A “sexually
dangerous person” means a person who:
(1) has engaged in a course of harmful sexual conduct as defined in
subdivision 7a;
(2) has manifested a sexual, personality, or other mental disorder or
dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct as
defined in subdivision 7a.
(b) For purposes of this provision, it is not necessary to prove that the
person has an inability to control the person’s sexual impulses.
The term “harmful sexual conduct” used in the definition of “sexually dangerous person” is also
defined in the statute: 114
Subd. 7a. HARMFUL SEXUAL CONDUCT. (a) “Harmful sexual
conduct” means sexual conduct that creates a substantial likelihood of serious
physical or emotional harm to another.
(b) There is a rebuttable presumption that conduct described in the
following provisions creates a substantial likelihood that a victim will suffer
(utter lack of power to control found in the automatic nature of his reoffending including
reoffending in a similar way after 15 years of incarceration and treatment; court rejected good
behavior in prison as evidence of self-control where examiner testified that it might show
successful adaptation to prison but not a distinct change in his personality); In re Meyer, No. C7-
96-981, 1996 WL 537500 (Minn. Ct. App. Sept. 24, 1996) (unpublished) (utter lack of control
found where offender discontinued treatment and while in treatment he was so overwhelmed by
his sexual urges that he still engaged in inappropriate sexual behavior; this was described by one
expert as the “supreme index” of being out of control).
111 1994 Minn. Laws, ch. 636, art. 8, § 20.
112 1994 Minn. Laws, 1st Spec. Sess., ch. 1.
113 Minn. Stat. § 253B.02, subd. 18b (1994) (the SPP and SDP laws were renumbered by 1997
Minn. Laws, ch. 217, art. 1, §§ 3 and 4 as 253B.02, subd. 18b and 18c, respectively).
114 Id., subd. 7a.
17

serious physical or emotional harm: [statutory provisions defining criminal sexual
conduct, 1st-4th degrees]. If the conduct was motivated by the person’s sexual
impulses or was part of a pattern of behavior that had criminal sexual conduct as a
goal, the presumption also applies to [statutory provisions defining Murder;
Manslaughter; Assault, lst-3d degrees; Robbery; Kidnapping; False
Imprisonment; Incest; Witness Tampering; Arson, 1st degree; Burglary, 1st
degree; Terroristic Threats; Harassment and Stalking].
A review of the SDP commitment category shows that it contains the same three
elements as the Pearson standard, i.e., (1) a history of harmful sexual conduct, (2) a disorder, and
(3) the resulting likelihood of future harmful sexual conduct. However, the SDP commitment
standard made two significant changes.
First, in response to the Linehan I decision, 115 the newer statute defined the disorder
differently than either the PP statute or the Pearson decision. The SDP law requires the person
to have a “sexual, personality or other mental disorder or dysfunction.” (That is, the person must
have a mental disorder or dysfunction; sexual and personality disorders are two types of mental
disorders that may be included.) The SDP statute makes it clear that this definition of disorder,
and not the utter-inability-to-control standard from Pearson, applies. The language of the newer
statute was drafted in consultation with mental health professionals, and was written in
contemporary language used by such persons, rather than the archaic language of the PP statute
and Pearson. 116
The second significant change brought about by the newer statute responded to the state
supreme court’s decision in In re Rickmyer. 117 While the definition of “harmful sexual conduct”
is taken essentially verbatim from Rickmyer, 118 the new statute creates a rebuttable presumption
that conduct that would violate certain criminal statutes is sufficiently harmful to support civil
commitment. This addressed the concern that the courts in Rickmyer and In re Schweninger 119
had not given sufficient weight to the long-term, serious emotional harm caused to children by
the acts of repetitive pedophiles.
B. Course Of Harmful Sexual Conduct.
The first requirement of the SDP law is that the person has “engaged in a course of
harmful sexual conduct” that “creates a substantial likelihood of serious physical or emotional
harm to another.” 120 Because the standard for harmfulness relates to the standard under the SPP
law, it will be discussed in section III.A., below. What conduct is “sexual” conduct will also be
115
In re Linehan (Linehan I), 518 N.W.2d 609, 613 (Minn. 1994).
116
Linehan III, 557 N.W.2d 171, 185 (Minn. 1996), vacated and remanded, 522 U.S. 1011
(1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).
117
In re Rickmyer, 519 N.W.2d 188 (Minn. 1994).
118
Id. at 190.
119
In re Schweninger, 520 N.W.2d 446 (Minn. Ct. App. 1994).
120
Minn. Stat. §§ 253B.02, subds. 18c(a)(1) and 7a (2009).
18

addressed in that section. But there is also an issue as to what is a “course” of harmful sexual
conduct.
The appellate court has upheld a commitment based on only two sexual assaults, but
declined to set a “numerical limit” on the term “course.” 121 Indeed, in one case the court held
that the person’s two sexual offenses satisfied not only the “course” requirement of the SDP law,
but also the “habitual course” requirement of the SPP law. 122
The appellate court has held that a person’s sexual abuse of his sister over an eight-year
period, and a single instance of sexual abuse of a 12-year-old girl during a later period, was
sufficient to constitute a course of harmful sexual conduct. 123 In another case, the court observed
that the person’s “many repeated, emotionally scarring assaults on [one] six-year-old victim
alone constitute a course of harmful sexual conduct.” 124
The appellate court has observed that similarity, number of incidents and reoffense soon
after release may be considered in determining the existence of a “course” of harmful sexual
conduct. 125 However, the SDP law does not require that the incidents of harmful sexual conduct
be similar, so that dissimilar incidents may nonetheless constitute a “course” of such conduct. 126
Nonetheless, similarity of the incidents may help to establish the course of conduct. 127
“[T]he incidents that establish the course will have occurred over a period of time and
need not be recent.” 128 Recency may relate to the likelihood of reoffense, but does not affect
121 In re Taylor, No. CX-02-1102, 2002 WL 31890941, at *6 (Minn. Ct. App. Dec. 31, 2002)
(unpublished); see also In re Braylock, No. A06-1053, 2006 WL 3409875 (Minn. Ct. App.
Nov. 28, 2006) (unpublished) (noting that trial court had found two incidents within two years to
constitute “course”).
122 In re Rask, No. A08-1312, A08-1551, 2009 WL 511943, at *2, 4 (Minn. Ct. App. Feb. 26,
2009) (unpublished).
123 In re Banks, No. C5-99-217, 1999 WL 451207, at *2 (Minn. Ct. App. July 6, 1999)
(unpublished), appeal after remand, No. C3-00-272, 2000 WL 1146740 (Minn. Ct. App. Aug.
15, 2000) (unpublished).
124 In re Woltjer, No. A06-2355, 2007 WL 1675030, at *4 (Minn. Ct. App. Jun. 12, 2007)
(unpublished).
125 Id.
126 In re Stone, 711 N.W.2d 831, 837 (Minn. Ct. App. 2006).
127 In re Fisher, No. A05-579, 2005 WL 2209079, at *3 (Minn. Ct. App. Sept. 13, 2005)
(unpublished).
128 In re Stone, 711 N.W.2d 831, 837-38 (Minn. Ct. App. 2006); see also Linehan I, 518 N.W.2d
609, 613-14 (Minn. 1994) (habitual course of misconduct factor met even though last sex offense
occurred in 1975 and petition filed in 1992; gap of time relevant in determining likelihood of
future harm, not habitual nature of the conduct); Linehan III, 544 N.W.2d at 312-13 (SDP law
“contains no requirement of a recent overt act” to meet “course of harmful sexual conduct”
requirement; remoteness of sexual conduct affects likelihood of future harm and not whether acts
constitute course of harmful sexual conduct); In re Ramey, 648 N.W.2d 260, 270 (Minn. App.
2002) (holding that acts occurring 20 years before commitment may be considered).
19

whether the acts constitute a “course” of conduct. 129 Moreover, a period in which the person did
not reoffend does not preclude a determination that his acts were a “course.” 130 This is
particularly true where the person was incarcerated for a substantial part of the “gap” period. 131
The “incidents establishing a course of conduct may extend over a long period of
time.” 132 But even where all of the person’s sexual assaults occurred in a one-month period 15
years earlier, the “course” requirement may be satisfied. 133
Conduct committed as a juvenile may satisfy the requirement of a “course” of harmful
sexual conduct. 134 There is no support for the argument that acts must be “knowing” or
“intentional,” or that the person must know his acts are wrong, in order to qualify for
commitment; indeed, the possibility the person did not know his acts were wrong may support
the need for commitment. 135
Where the person has committed acts meeting the definition of harmful sexual conduct,
other acts may be considered as part of the course even though those acts do not themselves meet
the harmfulness standard. 136 Prison related disciplinary infractions may be considered part of a
course of harmful sexual conduct. 137
The “course” requirement in the SDP law is similar to the first element of the SPP law,
but eliminates the “habitual” requirement in the latter law. Therefore, any course of conduct
satisfying the requirements of the SPP law, as explained in section I.B., above, will also satisfy
129 Linehan III, 544 N.W.2d at 312-13; In re Brown, No. A05-1500, 2006 WL 44354, at *4
(Minn. Ct. App. Jan. 10, 2006) (unpublished); In re Yazzie, No. A05-750, 2005 WL 2130605, at
*2 (Minn. Ct. App. Sept. 6, 2005).
130 Stone, 711 N.W.2d at 838, citing In re Robb, 622 N.W.2d 564, 573-74 (Minn. Ct. App. 2001).
131 In re Green, No. A06-2272, 2007 WL 1532156, at *4 (Minn. Ct. App. May 29, 2007)
(unpublished).
132 See, e.g., In re Swedeen, No. A07-805, 2007 WL 2770440, at *5 (Minn. Ct. App. Sept. 25,
2007) (unpublished); In re Alverson, No. A06-1567, 2007 WL 447159, at *5 (Minn. Ct. App.
Feb. 13, 2007) (unpublished).
133 In re Lindsey, No. A07-80, 2007 WL 1323597, at *2-3 (Minn. Ct. App. May 8, 2007)
(unpublished).
134 In re Black, No. A06-2262, 2007 WL 1470592, at *4 (Minn. Ct. App. May 22, 2007)
(unpublished).
135 Id.; see also In re Folson, No. A07-1916, 2008 WL 853597 (Minn. Ct. App. Apr. 1, 2008)
(unpublished) (saying, “The fact that appellant committed his first offense when he was a
juvenile is immaterial and does not minimize the offense”).
136 In re Alverson, No. A06-1567, 2007 WL 447159, at *6 (Minn. Ct. App. Feb. 13, 2007)
(unpublished) (person’s “returning to his cycle” of sexual assault by contacting minors on the
internet, using alcohol, accessing and possessing pornography could be considered part of
“course,” even though it was not completed harmful sexual conduct).
137 In re Green, No. A06-2272, 2007 WL 1532156, at *4 (Minn. Ct. App. May 29, 2007)
(unpublished).
20

the SDP law. Thus, to establish a course of sexual misconduct under the SDP law would not
require evidence of multiple victims. 138
As with the similar requirement of the SPP law, it is clear under the SDP law that
convictions for the sexual acts are not required. 139 Our federal district court has held that the
federal constitution does not require prior criminal convictions, or even that the person’s conduct
that supports commitment would violate criminal statutes. 140 The court of appeals has held that a
course of harmful sexual conduct was proven even where the person had no criminal convictions
for his conduct. 141 Because of the higher standard of proof in criminal cases, an act may be
proven in a civil commitment case even though the person has been acquitted of the act in a
criminal prosecution. 142
On appeal, the appellate court can disregard some incidents of sexual misconduct found
by the trial court, but nonetheless determine that the remaining incidents are sufficient to satisfy
the “course” requirement. 143
C. Mental Disorder.
1. The statutory requirement.
The second requirement of the SDP law is the mental disorder requirement, specifically
that the person “has manifested a sexual, personality, or other mental disorder or dysfunction.” 144
Although the requirement is stated in the past tense, the courts have clarified that the person must
currently have such a disorder. 145 The Minnesota Supreme Court has recognized that the statute
was written with the aid of psychiatrists and psychologists and is intended to use the terms
“sexual disorder,” “personality disorder” and “other mental disorder” as those terms are used by
138 In re Gleason, No. C2-97-2194, 1998 WL 218223 (Minn. Ct. App. May 5, 1998)
(unpublished) (although Gleason’s sexual misconduct involved more than one person, the law
does not require multiple victims in order to meet the “habitual course” standard).
139 In re Stone, 711 N.W.2d 831, 837 (Minn. Ct. App. 2006); In re Jackson, 658 N.W.2d 219,
226 (Minn. Ct. App. 2003); In re Ramey, 648 N.W.2d 260, 268 (Minn. Ct. App. 2002); In re
Moore, No. A09-623, 2009 WL 2747980 (Minn. Ct. App. Sept. 1, 2009) (unpublished)
(upholding commitment where person had no convictions for harmful sexual behavior, but
committing court found that those acts occurred).
140 Martin v. Mooney, No. 06-1605 DSD/RLE, 2007 WL 1306409, at *13-14 (D. Minn. May 3,
2007).
141 In re Moore, No. A09-0623, 2009 WL 2747980, at *2-3 (Minn. Ct. App. Sept. 1, 2009),
review denied (Minn. Nov. 17, 2009) (unpublished).
142 In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (involving mentally ill and dangerous
commitment).
143 In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)
(unpublished).
144 Minn. Stat. § 253B.02, subd. 18c(2) (2009).
145 In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999); In re Fugelseth,
No. A03-1330, 2004 WL 422695, at *6 (Minn. Ct. App. Mar. 9, 2004) (unpublished).
21

mental health professionals, with particular reference to the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (currently “DSM-IV-TR”). 146
The words “or dysfunction” were included in the statutory definition to address the
situation where a person may display the essential features of a recognized disorder, but not
satisfy all of the diagnostic criteria for the disorder in the DSM. However, because the current
edition of the DSM allows the evaluator to use clinical judgment to apply a diagnosis to a person
even though the person may not technically satisfy all of the criteria for the disorder, 147 the term
“dysfunction” may now be superfluous. There is no appellate decision under the SDP law where
the appellant has been determined to have a dysfunction, but not a disorder.
It is not important that the experts disagree about the proposed patient’s precise
diagnosis, where they agree that he has a disorder that meets the requirement of the statute. 148
Even though the SDP provision of the commitment act incorporates the procedures for
commitment of mentally ill and dangerous persons, the commitment act does not require that a
person committed as SDP be “mentally ill.” 149 Similarly, the fact that the person was found to be
criminally responsible (i.e., not qualifying for the insanity defense) or competent to stand trial in
a criminal case does not contradict a finding that he meets the disorder requirement of the SDP
law. 150
In Linehan III, Linehan argued to the state supreme court that an antisocial personality
disorder (“APD”) is per se an invalid basis for commitment. He argued that reliance on this
disorder is circular because, he asserted, the diagnosis is based simply on the person’s criminal
behavior. 151 The supreme court held that Linehan’s APD could constitutionally support civil
commitment, noting that “the purpose and effect of the diagnostic criteria in DSM-IV is to
identify an underlying mental disorder that accounts for behavior.” 152 The court observed that
146
Linehan III, 557 N.W.2d 171, 185 (Minn. 1996), vacated and remanded, 522 U.S. 1011
(1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).
147
American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, Fourth
Edition, Text Revision xxxii (2000).
148
In re Luhmann, No. A07-912, 2007 WL 2417341, at *3 (Minn. Ct. App. Aug. 28, 2007)
(unpublished) (pedophilia vs. paraphilia); In re Hilton, No. A06-2261, 2007 WL 1532151, at *7
(Minn. Ct. App. May 29, 2007) (unpublished) (three of four examiners reached similar
diagnoses).
149
In re Holden, No. C1-00-2229, 2001 WL 683004, at *2 (Minn. Ct. App. June 19, 2001)
(unpublished); In re Becker, No. C3-96-766, 1997 WL 470170 (Minn. Ct. App. Aug. 19, 1997)
(unpublished).
150
Linehan III, 557 N.W.2d at 183 (criminal responsibility); In re Holden, No. C1-00-2229, 2001
WL 683004, at *6 (Minn. Ct. App. June 19, 2001) (unpublished) (criminal competency).
151
557 N.W.2d at 184.
152
Id. at 185 (emphasis in original); see also In re Meyer, No. A07-460, 2007 WL 2770186, at
*2 (Minn. Ct. App. Sept. 25, 2007) (unpublished).
22

the trial court had relied not only on Linehan’s past behavior, but also his current mental
processes, in determining that he had an APD. 153
In another case, the appellate court rejected the argument that the person’s disorder must
be sexual in nature, concluding that a personality disorder may be sufficient. 154 A “not otherwise
specified,” or “NOS,” qualifier on a diagnosis does not mean that the diagnosis is less valid or
significant. 155 The court has held that “personality disorder NOS” is sufficient to satisfy the
mental disorder element of the SDP law. 156
The SDP law does not require that the person be diagnosed as a “sociopath” on the
PCL-R in order to qualify for commitment. 157
In In re McRae, the proposed patient asserted that he did not satisfy the mental disorder
requirement because his condition had a significant component of chemical abuse and
dependence. 158 The court of appeals rejected his argument, noting that there was no authority to
support it.
The following section discusses the requirement of Linehan IV that the person’s mental
“disorder or dysfunction does not allow [him] to adequately control [his] sexual impulses.” 159 In
In re Fugelseth, the proposed patient argued that the mental disorders with which he was
diagnosed—pedophilia and a personality disorder—did not necessarily involve an inability to
control sexual behavior, and therefore the requirement of Linehan IV that his “disorder or
dysfunction does not allow” him to adequately control his sexual impulses was not satisfied. 160
The court of appeals rejected that argument, however, because the evidence showed that, in
Fugelseth’s case, the disorders made him unable to adequately control his impulses. 161
2. Inability to adequately control.
In In re Linehan (Linehan IV), 162 in order to uphold the constitutionality of the SDP law,
the Minnesota Supreme Court interpreted the law to require that the person’s mental “disorder or
153 Id.
154 In re Krych, No. A07-2069, 2008 WL 1800140, at *3 (Minn. Ct. App. Apr. 22, 2008)
(unpublished).
155 In re Giishig, No. A07-0616, 2007 WL 2601423, at *11 (Minn. Ct. App. Sept. 11, 2007)
(unpublished) (addressing person diagnosed with “paraphilia NOS”).
156 Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475, at *4 (Minn. Ct. App. July 1, 2008)
(unpublished), review denied (Minn. Sept. 23, 2008).
157 In re Olson, No. A06-1601, 2007 WL 509693, at *3 n.1 (Minn. Ct. App. Feb. 20, 2007)
(unpublished).
158 In re McRae, No. A04-2028, 2005 WL 646801, at *2 (Minn. Ct. App. Mar. 22, 2005)
(unpublished).
159 In re Linehan (Linehan IV), 594 N.W.2d 867, 876 (Minn. 1999).
160 In re Fugelseth, No. A03-1330, 2004 WL 422695, at *9 (Minn. Ct. App. Mar. 9, 2004)
(unpublished).
161 Id.
162 Linehan IV, 594 N.W.2d 867 (Minn. 1999).
23

dysfunction does not allow [him] to adequately control [his] sexual impulses” or, put differently,
“does not allow the person to adequately control his sexual behavior.” 163 The court interpreted
the statute to include this requirement in order to uphold the statute under the United States
Supreme Court’s decision in Kansas v. Hendricks. 164
The state court of appeals has held that the standard to be applied after Linehan IV is the
“does not allow him to adequately control” standard, and not a “difficult if not impossible to
control” standard or a “special and serious” lack of control standard based on other language in
Hendricks. 165
As explained in section V.B.5., below, however, in In re Crane in early 2002, the U.S.
Supreme Court held that, in order to civilly commit a person as sexually dangerous, “there must
be proof of serious difficulty in controlling behavior.” 166 As discussed in section V.B.6.,
following Crane the state court of appeals and the Eighth Circuit have held that committing
courts need not apply the specific Crane language; rather, Crane provides the constitutional legal
standard by which appellate courts evaluate the adequacy of the State’s commitment formula.
Thus, it is now clear that trial courts can continue to apply the Linehan IV “does not allow him to
adequately control his sexual impulses [or behavior]” standard.
On appeal, an SDP commitment may be sustained even though the trial court’s findings
and conclusions did not refer to “inability to control,” so long as the underlying factual record
shows an inability to adequately control sexual behavior. 167 Moreover, because satisfaction of
the “inability to adequately control” commitment standard presents a legal issue, not a factual
one, the appellate court may overrule the trial court’s determination that the proposed patient did
not possess the required inability to control. 168
Linehan IV makes it clear that the standard is less stringent than the “utter lack of power
to control” requirement in Pearson. 169 In finding that the district court’s findings in Linehan’s
case supported a conclusion that Linehan lacked adequate control, the supreme court cited
findings related to Linehan’s impulsiveness, his inability to delay masturbation in response to
stimulation by his young step-daughter, his commission of offenses while drunk, his continuing
163
Id. at 876 & n.4 (emphasis added).
164
Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997).
165
In re Taylor, No. CX-02-1102, 2002 WL 31890941, at *4 (Minn. Ct. App. Dec. 31, 2002)
(unpublished); In re Prather, No. C0-00-987, 2000 WL 1778321, at *2 (Minn. Ct. App. Nov. 21,
2000) (unpublished), review denied (Minn. 2001), cert. denied, 532 U.S. 1045 (2001); In re
Martinelli, No. C4-00-748, 2000 WL 1285430, at *2 (Minn. Ct. App. Sept. 12, 2000)
(unpublished), review denied (Minn. 2000), vacated and remanded, 534 U.S. 1160, 122 S. Ct.
1171 (2002), aff’d after remand, 649 N.W.2d 886 (Minn. Ct. App. 2002).
166
Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002) (emphasis added).
167
In re Fox, No. A03-1019, 2004 WL 61111, at *3-4 (Minn. Ct. App. Jan. 13, 2004)
(unpublished).
168
In re Martin, 661 N.W.2d 632, 638-40 (Minn. Ct. App. 2003) (reversing trial court’s
determination that inability to control had not been proved).
169
See also In re Bartholomew, No. A07-1892, 2008 WL 853593, at *2 (Minn. Ct. App. Apr. 1,
2008) (unpublished).
24

aggressive tendencies and his antisocial personality disorder diagnosis. 170 In In re Fisher, the
court of appeals summarized what it believed were the factors in Linehan IV showing lack of
adequate control: “(1) a recent display of sexual impulsiveness; (2) concealing sexual
misconduct; (3) abusing substances that heighten sexual impulsiveness; (4) aggressive behavior;
and (5) the particular symptoms of the mental disorder.” 171 The court of appeals has held that the
factors that showed lack of adequate control in Linehan IV are sufficient to make that showing,
but those particular factors are not necessary to show lack of adequate control in other cases. 172
In In re Ramey, the court of appeals explained the meaning of “adequate control”:
Taken in the larger context of the holding of Linehan IV, the meaning of the
phrase “adequate control” is clear; an offender’s history of harmful sexual
conduct and a high likelihood of future dangerousness, coupled with a mental
illness or dysfunction, demonstrates that an offender will find it difficult to
control behavior. 173
Evidence that a person is unable to adequately control his sexual impulses may
“substantially overlap” the evidence of the other SDP requirements, including course of harmful
sexual conduct, mental disorder and likelihood of sexual reoffense. 174 Indeed, in one case the
court of appeals said, “In other words, if there is clear and convincing evidence that appellant is
highly likely to reoffend, then there is clear and convincing evidence that he is unable to control
his sexual impulses. 175
The SDP law, as interpreted in Linehan IV, does not require a finding that the person
completely lacks the ability to control his sexual behavior. 176 It is not necessary that the person
lack adequate control at all times, if at some times he lacks such control. 177 And the fact that
there was a 10-year gap in the person’s sex offenses does not show that he had adequate control
over his sexual behavior. 178 Similar, an extended time since the person’s last offense does not
preclude a finding that he lacks adequate control. 179
170
Linehan IV, 594 N.W.2d at 876-77
171
In re Fisher, No. A05-579, 2005 WL 2209079, at *5 (Minn. Ct. App. Sept. 13, 2005)
(unpublished).
172
In re Fageroos, No. A06-1947, 2007 WL 509748, at *3 (Minn. Ct. App. Feb. 20, 2007)
(unpublished).
173
In re Ramey, 648 N.W.2d 260, 268 (Minn. Ct. App. 2002).
174
In re Lindsey, No. A07-80, 2007 WL 1323597, at *5 (Minn. Ct. App. May 8, 2007)
(unpublished).
175
In re Garza, No. A08-0288, 2008 WL 2889700, at *8 (Minn. Ct. App. July 29, 2008)
(unpublished).
176
In re White, No. A05-1474, 2005 WL 3112024, at *1 (Minn. Ct. App. Nov. 22, 2005).
(unpublished).
177
In re Coker, No. C7-00-873, 2000 WL 1617874, at *1-2 (Minn. Ct. App. Oct. 31, 2000)
(unpublished).
178 In re Robb, 622 N.W.2d 564, 573 (Minn. Ct. App. 2001).
179 In re Brown, No. A05-1500, 2006 WL 44354, at *5 (Minn. Ct. App. Jan. 10, 2006)
(unpublished).
25

Where the proposed patient’s sexual assaults were related to use of alcohol, the fact that
he relapsed in drug and alcohol used despite his desire to refrain from such use helped
demonstrate inability to adequately control. 180 A proposed patient’s inadequate ability to control
his sexual behavior was shown where his bipolar disorder and pedophilia clouded his ability to
control his sexual behavior and where he had a long history of impulsive and noncompliant
behavior going back to childhood. 181
In some cases, the court of appeals has cited cases concerning the “utter lack of power to
control” requirement of the SPP law, and the factors described in those cases, in determining
whether a person lacks adequate ability to control his sexual behavior under the Linehan IV
standard. Specifically, the court has cited factors of failing to accept that the person has a
problem, and refusing sex offender treatment. 182
III. COMMITMENT ISSUES UNDER BOTH STATUTES.
While many of the commitment requirements of the SPP statute differ from those of the
SDP law, there are several issues that are either the same under the two statutes or that are
sufficiently related so that it makes sense to discuss them together.
A. Harmful Nature Of Sexual Misconduct.
1. SPP Statute.
a. Rickmyer standard for harmfulness.
The Minnesota appellate courts have made clear that the SPP commitment law does not
apply to every person who commits a sex offense. Initially, there was no effort to define the
nature of the harmful sexual misconduct that would be required for commitment. Rather the
Pearson court merely cautioned against an overbroad application of the statute:
It would not be reasonable to apply the provisions of the statute to every person
guilty of sexual misconduct nor even to persons having strong sexual propensities.
Such a definition would . . . make the act impracticable of enforcement and,
perhaps, unconstitutional in its application. 183
The supreme court first articulated a standard for harmfulness in 1994 in In re
Rickmyer. 184 Rickmyer had exposed himself to some boys in a motel room, touched children’s
180
Id. at *6
181
In re Prather, No. C0-00-987, 2000 WL 1778321, at *3 (Minn. Ct. App. Nov. 21, 2000)
(unpublished).
182
In re Coker, No. C7-00-873, 2000 WL 1617874, at *2 (Minn. Ct. App. Oct. 31, 2000)
(unpublished) (citing In re Irwin, 529 N.W.2d 366, 375 (Minn. Ct. App. 1995) and In re Pirkl,
531 N.W.2d 902, 907 (Minn. Ct. App. 1995)); In re Banks, No. C3-00-272, 2000 WL 1146740,
at *3 (Minn. Ct. App. Aug. 15, 2000) (unpublished) (citing Irwin).
183
Pearson, 287 N.W. at 302.
184
In re Rickmyer, 519 N.W.2d 188 (Minn. 1994).
26

uttocks at a playground (at least sometimes inside their clothing), touched a boy’s private parts
(it is unclear whether this was under the boy’s clothing) and “spanked” a number of kids at the
playground. 185 After concluding that Rickmyer’s sexual conduct did not constitute the type of
harm addressed by the statute, the court said:
There may be instances where a pedophile’s pattern of sexual misconduct is of
such an egregious nature that there is a substantial likelihood of serious physical
or mental harm being inflicted on the victims such as to meet the requirements for
commitment as a psychopathic personality. 186
Nonetheless, the court reversed Rickmyer’s commitment holding that his “unauthorized sexual
‘touchings’ and ‘spankings,’ while repellent, do not constitute the kind of injury, pain, ‘or other
evil’ that is contemplated by the psychopathic personality statute.” 187
In In re Scott, 188 the court of appeals rejected the argument (under both the SPP and SDP
laws) that the appellant’s sexual assaults were not “sexual misconduct” because they were
motivated by financial gain in promoting prostitution, rather than sexual gratification, stating that
it was “both a reasonable and compelling inference” that Scott’s assaults were motivated at least
in part by his sexual gratification. 189
b. Conduct without completed sexual assault: HIV status,
exhibitionism, exposing, kidnapping.
The SPP statute’s requirement of sexual misconduct deals with behavior, not merely the
person’s health condition or status. Absent some form of sexual misconduct directed towards
another person, regardless of the clear risk of serious harm presented by the person, the statute
has been interpreted to not apply. The court of appeals refused to apply the statute to a carrier of
HIV who intended to have sexual intercourse with others without advising them of his HIV
status because the law “was passed to deal with conduct, not health conditions.” 190 Despite the
clear danger presented by the person’s sexual contact with others, in the absence of his HIV
status, the person’s conduct itself would not support a commitment. 191
By comparison, an exhibitionist’s habitual conduct of exposing himself to others may
present the required misconduct depending upon the course it has followed. The court of appeals
affirmed the commitment of an exhibitionist where his behavior had escalated to include direct
185 Id. at 189.
186 Id. at 190 (emphasis added).
187 Id.
188 In re Scott, No. A05-1356, 2005 WL 3470521 (Minn. Ct. App. Dec. 20, 2005) (unpublished).
189 Id. at *3.
190 In re Stilinovich, 479 N.W.2d 731, 736 (Minn. Ct. App. 1992) (emphasis in original) (court
held problem should be addressed under Health Threat Procedures Act).
191 Id.
27

confrontations with victims and minor contact with his latest victim. 192 The court reasoned that
the trial court was not required to delay commitment until someone else was actually harmed
because the danger of the person’s conduct had already become evident. 193 By contrast, the
court of appeals refused to apply the statute to “a nonviolent exhibitionist” where the person
“had never made any overt acts towards his victims to show an intent of physical harm. The
possibility of escalation was wholly speculative.” 194
The court of appeals has held that severe window peeping behavior constituted sexual
misconduct for the purposes of the SPP law. The respondent peeped on the same woman over
300 times, typically masturbating to ejaculation while peeping or shortly afterward. The woman
felt like a prisoner in her home, fearing the respondent would come into her home and rape her
or her child. 195
The court of appeals has held that a person’s four attempted kidnappings, three at knife
point, constituted a habitual course of misconduct in sexual matters, even though the respondent
had not sexually assaulted any of his victims, where the kidnappings were motivated by the
respondent’s sexual impulses. 196
c. Violence; likely harm greater than normal? Robb and Preston.
Since Rickmyer, the court of appeals has struggled with the issue of whether the proposed
patient’s conduct must have been “violent” and how serious the likely physical or mental harm
must be in order to support commitment. The proposed patients have pointed to use of the words
“violent” and “violence” at various points in the Blodgett and Rickmyer opinions. In 2001, the
court of appeals issued two directly contradictory published opinions addressing these issues.
In In re Robb, the court of appeals addressed the violence issue directly and held:
Under Blodgett and Rickmyer, behavior that makes a person “dangerous to other
persons” as required by the sexual-psychopathic-personality statute is limited to
violent sexual assaults that create a substantial likelihood of serious physical or
mental harm being inflicted on the victims. 197
192
In re Clements, 440 N.W.2d 133, 134 (Minn. Ct. App. 1989) (two examiners testified that he
had not harmed any of the victims and presented only speculative possibility of dangerousness;
third examiner found danger real in light of escalation in exhibitionist behavior).
193
Id. at 136.
194
In re Rodriguez, 506 N.W.2d 660, 663 (Minn. Ct. App. 1993) (“While appellant’s behavior is
undoubtedly serious and disturbing to his victims, he did not have physical contact with them,
molest, rape, or otherwise sexually assault them and ordinary criminal sanctions should suffice.”)
195
In re Mely, No. A09-2110, 2010 WL 1658591, at *1-3 (Minn. Ct. App. Apr. 27, 2010)
(unpublished).
196
In re Guetter, No. A09-1358, 2010 WL 10425, at *1-3 (Minn. Ct. App. Jan. 5, 2010)
(unpublished).
197
In re Robb, 622 N.W.2d 564, 571 (Minn. Ct. App. 2001).
28

But the court added: “However, a wide range of conduct can be described as violent sexual
assaults.” 198 The court’s discussion does not explain what wide range of conduct might be
covered by the phrase “violent sexual assaults,” and the court’s decision overturning Robb’s
commitment under the SPP statute does not appear to turn on the requirement of violence.
Rather, the court looked to the facts and holdings of Blodgett and Rickmyer in an attempt
to determine when the expected harm from a sex offense would constitute “serious physical or
mental harm.” The court announced an apparent standard for this determination, saying “serious
mental harm must mean greater mental harm than would be expected in a sexual assault.” 199
Then, applying this standard to the facts of Rickmyer and Blodgett, the court said that “there is no
indication that [the harm that would result from Rickmyer’s acts] was greater than the harm that
could be expected to be caused by any sexual assault,” 200 but that “[t]he physical and mental
harm likely to be caused by Blodgett’s behavior was greater than the physical and mental harm
likely to be caused by other sexual assaults that involve some force.” 201
The court then concluded that Robb’s acts did not meet this standard. While Robb’s first
two series of sexual assaults had primarily involved touching adolescent boys over their clothing,
he had performed oral sex on and masturbated an adolescent boy in a sex offender treatment
program, and his last series of offenses involved performing oral sex and mutual masturbation on
three boys, ages 12-14, on numerous occasions. Robb’s earlier touching offenses had occurred
while he acted as a music teacher, and his last offenses involved a classic pedophilic grooming
pattern—employing snacks, drugs, video games and pornographic videos as enticements. He
physically restrained one victim while performing oral sex on him and he often persisted even
after the boys told him to stop. 202 The appellate court reversed Robb’s SPP commitment,
holding that the “mental harm [that would result from his acts] was not greater than the mental
harm likely to be caused by a sexual assault.” 203
Both Robb and the county sought state supreme court review on the harmfulness issue.
(Robb sought such review because the appellate court upheld his SDP commitment.) However,
the supreme court denied review.
Shortly after the supreme court denied review in Robb, the court of appeals issued a
decision affirming the SPP (and SDP) commitment in In re Preston. 204 In addition to various
acts of fondling, Preston’s sexual abuse of young girls (as young as age four) had included
performing oral sex on several of them and digitally penetrating the vagina of one girl. He used
physical restraint on his child victims. Similar to Robb, Preston argued that his actions were not
violent, nor sufficiently harmful under the Rickmyer standard.
198 Id. at 569.
199 Id. at 571.
200 Id.
201 Id. at 572.
202 Id. at 567.
203 Id. at 573.
204 In re Preston, 629 N.W.2d 104 (Minn. Ct. App. 2001).
29

The appellate court rejected Preston’s arguments, concluding that the “collateral physical
force” he used with his victims constituted violence. 205 The court expressly disagreed with
Robb’s holding that “limited restraint of a victim that does not cause physical injury itself is not
the kind of violence contemplated by the sexual-psychopathic-personality statute.” 206 The court
said:
Preston only engaged in the amount of force necessary to accomplish his will on
very young victims, but this amount of force was violence nonetheless. It would
be absurd to hold that because less force was needed to subdue an extremely
young victim, the assault was non-violent. 207
The court then added:
Furthermore, even if Preston had not used force, the character and nature
of his sexual acts alone were sufficient for indeterminate commitment. This is not
a situation where Preston engaged in “touchings and spankings;” the sexual acts
themselves were extremely violent. 208
Thus, the court in Preston held that the mere act of sexual assault, at least that involving oral
sexual contact or penetration with children, constitutes sexual violence. And the court
specifically noted that the Rickmyer standard does not require a likelihood of physical harm, but
that a likelihood of mental harm is sufficient. 209
Moreover, the court in Preston expressly disagreed with Robb’s holding that greaterthan-normal
harmfulness is required:
The supreme court has not suggested that the question is whether the violence was
greater than that involved in “other sexual assaults that involve some physical
force,” see Robb, 622 N.W.2d at 572 (comparing the degree of violence involved
to “other sexual assaults”), but whether it was violent to the point of creating “a
substantial likelihood of serious physical or mental harm.” Rickmyer, 519
N.W.2d at 190. 210
Thus, the court held that the standard for violence is the Rickmyer standard—whether the
conduct creates a substantial likelihood of serious physical or emotional harm.
The court then upheld Preston’s commitment, saying:
205 Id. at 113.
206 Id.
207 Id.
208 Id.
209 Id. at 112 n.4.
210 Id. at 113.
30

Preston’s behavior involved impermissible sexual contact (including oral sexual
contact and vaginal penetration) with victims as young as four years old, and he
victimized many of the children repeatedly. The court received expert testimony
that the character of Preston’s acts was such that psychological harm would be a
likely consequence for his victims. There can be no question that this pattern of
behavior is so egregious so as to create the “substantial likelihood of physical or
mental harm.” 211
d. What does “violence” mean, and how much harmfulness is
necessary, post-Robb and Preston?
Following the Robb and Preston decisions, the appellate court in In re Kindschy 212 again
considered an argument that the patient’s acts were not sufficiently violent to qualify for
commitment. Despite the express contradiction of Robb by Preston, the court of appeals in
Kindschy appeared to reconcile the two decisions, applying both of them in upholding
Kindschy’s SPP commitment. The court said:
Unlike the assaults in Rickmyer and Robb, Kindschy’s sexual assaults involved
much more than spanking, fondling, masturbation, and indecent exposure. They
involved repeated oral and anal sex with children as young as five years old and
were accompanied by threats of violence. As in Preston, the character and nature
of Kindschy’s assaults alone justify a finding that Kindschy is substantially likely
to cause serious physical and emotional harm and is, therefore, dangerous to
others within the meaning of Minn. Stat. § 253B.02, subd. 18b. 213
But the Kindschy court’s characterization of Robb’s behavior as involving only “spanking,
fondling, masturbation, and indecent exposure” was incorrect. Robb performed oral sex on at
least four adolescent or pre-teen boys numerous times. 214
The following year, in In re Rubin, 215 the appellate court again attempted to find
simultaneous life in Robb and Preston. The court cited Preston for the proposition that “serious
psychological harm [is] sufficient to meet [the] violence requirement,” and Robb for the
proposition that “[a]n assault is considered violent when the ‘physical and mental harm likely to
be caused by [the defendant’s behavior] was greater than the physical and mental harm likely to
be caused by sexual assaults that involve some physical force.’” 216 Citing Robb, the court said,
“Serious harm results from acts that are ‘highly likely to have a serious, lasting effect on the
victim’s sense of security and to cause a continuing sense of fear.” 217 The court found Rubin’s
211 Id.
212 In re Kindschy, 634 N.W.2d 723, 732 (Minn. Ct. App. 2001).
213 Id.
214 Robb, 622 N.W.2d at 566-67.
215 In re Rubin, No. C5-02-570, 2002 WL 31111248, at *5 (Minn. Ct. App. Sept. 24, 2002)
(unpublished).
216 Id. (citing Preston, 629 N.W.2d at 112, and Robb, 622 N.W.2d at 572).
217 Id. (citing Robb, 622 N.W.2d at 572).
31

molestation of children sufficiently harmful where several of the assaults involved some form of
penetration and were accompanied by both violent and non-violent threats. The court also noted,
“It is not uncommon to have the effects or harm emerge long after the actual assault.” 218
In 2004, in In re McMoore, 219 the appellate court considered whether the appellant’s
conduct was sufficiently harmful under Rickmyer, without any reference to the Robb decision.
McMoore argued that his conduct in molesting three children was no more serious than that
involved in Rickmyer. Rejecting that argument, the appellate court emphasized that McMoore
had engaged in digital anal penetration, reciprocal oral sex, attempted vaginal intercourse and
actual genital fondling with the victims, rather than merely the exposing, touching and spankings
at issue in Rickmyer. 220 The court also emphasized the young age of the victims (three through
six years old) and the large number of incidents over several years. 221 The court compared
McMoore’s conduct to the conduct involved in Preston, but did not mention Robb. 222
In 2005, in In re White, 223 the court of appeals reversed an SPP commitment based on
lack of violence. The court said that the district court found that the appellant’s conduct was
“harmful,” but made no finding that it was “violent.” 224 The court said that “the forceful conduct
in [Preston] went far beyond that acknowledged by [White].” 225 The White decision does not
describe the conduct involved in that case.
In two 2006 cases, the appellate court again upheld SPP commitments, rejecting
arguments that the appellants’ conduct was not “violent.” In In re Kirckof, 226 the appellant cited
Robb in support of his argument. But the appellate court held Kirckof’s acts to be violent under
Preston, noting that Kirckof’s acts involved penetration and that he held one victim down during
the assault. The court noted the lasting emotional harm to one of the victims. 227 In In re
Urbanek, the appellate court held that “[c]aselaw does not support appellant’s argument” that his
acts were not violent as required by the SPP law, citing Rickmyer and Preston. 228 Urbanek had
engaged in oral sex with several young children, although the opinion does not mention any use
218 Id.
219 In re McMoore, No. A04-1008, 2004 WL 2340231 (Oct. 19, 2004).
220 Id. at *1.
221 Id.
222 Id.
223 In re White, No. A05-1474, 2005 WL 3112024 (Minn. Ct. App. Nov. 22, 2005)
(unpublished).
224
Id. at *4.
225
Id.
226
In re Kirckof, No. A06-956, 2006 WL 3007995 (Minn. Ct. App. Oct. 24, 2006)
(unpublished).
227
Id. at *7
228
In re Urbanek, No. A05-1633, 2006 WL 44358, at *3 (Minn. Ct. App. Jan. 10, 2006)
(unpublished).
32

of force. 229 The court said, “Appellant’s arguments overlook the evidence of prolonged suffering
experienced by children who were victims of sexual offenses like his.” 230
In 2007, in In re Peria, the appellate court concluded that the appellant’s threats to kill
one victim and the victim’s parents, the multiple offenses and the digital penetration “enhance
the victims’ harm beyond that expected from a sexual assault.” 231 In another 2007 case, In re
Lund, the court found sufficient violence due to the appellant’s grooming, coercion and physical
force used to accomplish the sexual misconduct, coupled with his place of authority as babysitter
and trusted friend. 232
In a third 2007 case, In re Christiansen, the court of appeals held that “appellant’s
reliance on Robb for the proposition that the sexual offenses must be violent in nature is
misplaced.” 233 The court held that facts that meet the Rickmyer standard—“sexual misconduct
. . . of such an egregious nature that there is a substantial likelihood of serious physical or mental
harm being inflicted on the victims”—are violent enough to qualify for commitment. Citing
Preston, the court said, “[E]gregious sexual misconduct, by the nature of the sexual acts
themselves, can be considered violent.” 234 The court concluded: “Thus, the nature of appellant's
sexual offenses was such that they likely caused substantial mental harm to his victims, and as a
result, they were sufficiently egregious and violent in their nature to meet the dangerous-toothers
requirement of the SPP definition.” 235
In a 2008 case, In re Schultz, the court of appeals followed Preston in concluding that
“sexual activities with very young children” are “inherently violent.” 236 Shultz’s youngest
victim was five years old. In another 2008 case, In re Benson, the appellate court followed
Preston, saying, “The majority of appellant’s assaults were violent because he used whatever
force was necessary to perpetrate his assaults.” 237 And, in a third 2008 decision, In re
Goldhammer, the court said rejected the appellant’s reliance on Robb, observing that Preston had
qualified Robb’s holding. 238
229
Id. at *1.
230
Id. at *3.
231
In re Peria, No. A06-1452, 2007 WL 235632, at *6 (Minn. Ct. App. Jan. 30, 2007)
(unpublished).
232
In re Lund, No. A06-1657, 2007 WL 584175, at *3 (Minn. Ct. App. Feb. 27, 2007)
(unpublished).
233
In re Christiansen, No. A07-1290, 2007 WL 4305465, at *8 (Minn. Ct. App. Dec. 11, 2007)
(unpublished).
234
Id.
235
Id. at *9.
236
In re Schulz, No. A07-1368, 2007 WL 4634071, at *5 (Minn. Ct. App. Jan. 8, 2008)
(unpublished).
237
In re Benson, No. A08-0793, 2008 WL 4850153, at *5 (Minn. Ct. App. Nov. 3, 2008)
(unpublished).
238
In re Goldhammer, No. A08-0251, 2008 WL 2967076, at 6-7 (Minn. Ct. App. Aug. 5, 2008)
(unpublished).
33

In 2009, in In re Rask, the court of appeals said: “[A]ppellate decisions since Robb have
retreated from Robb’s interpretation of the harmfulness standard [of the SPP law], which
required that ‘serious mental harm must mean greater mental harm than would be expected in a
sexual assault.” 239 The court cited Preston and Kindschy for this proposition. 240
e. Discussion of violence and harmfulness in cases preceding
Robb and Preston.
Given the disagreement between the Robb and Preston decisions and the inconsistent
case law following those decisions, litigants and the courts may also look to earlier decisions to
ascertain the meaning of “violence” and attempt to determine the standard for harmfulness of
conduct under the two laws.
Shortly after Rickmyer, the court of appeals in In re Schweninger (Schweninger I) 241
overturned the commitment of a pedophile who had molested at least 17 children by engaging in
“bribing” and “mutual fondling, exposure and oral sex,” holding that the conduct was not
sufficiently harmful to warrant commitment. As it later held in Robb, the Schweninger I court
held that Blodgett and Rickmyer “preclude[] the commitment of appellant as a non-violent
pedophile under the psychopathic personality statute,” 242 and that a pedophile could not be
committed “absent a showing of violence.” 243 The court of appeals incorrectly characterized
Rickmyer as requiring “a substantial likelihood of serious physical harm such as to meet the
requirements for commitment.” 244 (As noted above, Rickmyer authorized commitment based
upon a showing of a substantial likelihood of serious physical or mental harm. 245 ) One judge,
dissenting in Schweninger I, said: “[W]e depart from precedent by suggesting that the
psychopathic personality statute protects only victims of raw physical force—not the children
and vulnerable adults whose lives are severely and permanently marred by sexual behavior like
the acts of sexual penetration that are part of appellant’s pattern of conduct.” 246
A week later, the same panel of the court of appeals upheld the commitment of another
pedophile in In re Bieganowski. 247 Bieganowski had sexually assaulted his teenage sister-in-law
and had engaged in multiple acts of oral sex and at least one instance of anal intercourse with
239
In re Rask, No. A08-1312, A08-1551, 2009 WL 511943, at *3 (Minn. Ct. App. Feb. 26, 2009)
(unpublished).
240
Id.
241
In re Schweninger, 520 N.W.2d 446 (Minn. Ct. App. 1994).
242
Id. at 449.
243
Id. at 450; but cf. In re Schweninger (Schweninger II), No. C1-96-362, 1997 WL 613670
(Minn. Ct. App. Oct. 7, 1997) (unpublished) (the court of appeals, upholding commitment,
concluded that the SDP statute requires a showing of likelihood of either serious physical or
emotional harm, but does not require both).
244
Id. (emphasis added).
245
Rickmyer, 519 N.W.2d at 190 (emphasis added).
246
Schweninger I, 520 N.W.2d at 452 (Crippen, dissenting).
247
In re Bieganowski, 520 N.W.2d 525 (Minn. Ct. App. 1994).
34

young children. 248 Although the court did not discuss the degree of harm or the level of violence
required to support commitment, Bieganowski’s sexual misconduct did not appear to involve
greater violence or force than that used by Schweninger.
Later that same year, in In re Young, the court of appeals considered the commitment of a
pedophile who had engaged in oral sex and vaginal intercourse with a number of young girls. 249
Despite this evidence of sexual penetration, the court appeared to be searching for evidence of
actual or threatened physical violence and apparently concluded that slamming one child’s
fingers in a car door and beating her, and threatening to kill one of the victims and her family,
provided the violence necessary to support the commitment. 250 However, less than a year later,
in In re Mattson, the court of appeals found physical violence unnecessary to sustain a
commitment of a person who had engaged in forced anal sex, oral sex, and digital penetration
with young children. 251 In upholding the commitment, the court stressed expert testimony “that a
physically noninjurious assault on a child nonetheless can be physically or emotionally violent,
and can include post-traumatic effects.” 252 A month later, the court of appeals in In re
Adolphson 253 came closer to relying on purely mental harm suffered by victims to support a PP
commitment. While the Adolphson court noted that the offender intimidated and used “painful
finger pressure to coerce his young victims,” 254 the court explained its decision to uphold the
commitment on the basis that “the trial court found appellant has inflicted serious mental harm
on his victims, which resulted in fear of discovery, fear of job loss, long-term guilt, sleep
problems and nightmares, denial or repression of feelings, alcohol problems, and depression.” 255
Since Schweninger I, only one appellate SPP (or SDP) decision, In re White, discussed
above, has overturned a commitment because of the lack of physical violence. 256 On the other
hand, there are many examples of the courts considering the level of harm experienced or likely
to be experienced by the offender’s victims and focusing upon their emotional harm. In In re
Hoium, the appellate court found the standard met where the district court credited testimony that
the appellant’s acts against children, including fondling, fellatio, digital and anal penetration,
248 Id. at 526.
249 In re Young, No. C1-94-1779, 1994 WL 654508 (Minn. Ct. App. Nov. 22, 1994)
(unpublished).
250 Id.
251 In re Mattson, No. C5-95-452, 1995 WL 365374 (Minn. Ct. App. June 20, 1995)
(unpublished).
252 Id., see also In re Mathews, No. C6-95-749, 1995 WL 421702 (Minn. Ct. App. July 18, 1995)
(unpublished) (“the fact that Mathews did not beat his victims does not render the acts
nonviolent”).
253 In re Adolphson, No. C5-95-533, 1995 WL 434386 (Minn. Ct. App. July 25, 1995)
(unpublished).
254 Adolphson engaged in touching, grabbing, and pinching of buttocks or genitals leading to
manual manipulation and masturbation, and then anal and oral sex.
255 Id.
256 In re White, No. A05-1474, 2005 WL 3112024 (Minn. Ct. App. Nov. 22, 2005)
(unpublished).
35

using coercion, force and manipulation, “were likely to cause serious emotional harm.” 257 In In
re Hart, the court of appeals, noting Hart’s “frequent use of physical force and coercion to
accomplish his countless sexual assaults against children,” emphasized the emotional results of
these assaults—“school problems, depression, isolation, confusion, and difficulties with trust and
with sexual relations.” 258 In In re Krueger, after finding that the conduct Krueger “engaged in
was of the type to cause serious physical or emotional harm to the victims,” and finding serious
physical harm suffered by a six-year-old victim when appellant inserted his finger or penis into
her small vaginal opening, the court cited serious emotional problems such as flashbacks,
nightmares, troubles with relationships with men, thoughts about committing suicide, and the
need for counseling. 259 In In re Weiss, the court found sufficient harm where the offender
threatened and spanked some of the children, held their arms and legs down if they resisted, and
bribed and cajoled them by offering gifts of candy, ice cream, and toys; the court also referenced
testimony about the mental harm suffered by some of the victims and that the force used inflicted
a great deal of pain. 260
Similar to the holding in Preston, a number of previous court of appeals decisions have
indicated, directly or indirectly, that physical violence is not required. In In re Poole, the
proposed patient asserted that his actions did not qualify for commitment because they were not
violent. 261 Rejecting this argument, the court said: “The relevant question is whether there is a
substantial likelihood of serious physical or emotional harm. The [trial] court found that Poole’s
type of non-violent abuse is likely to cause in victims a loss of trust, insecurity, anxiety,
depression, sleep disorders, and problems with parenting.” 262 In In re LeMasters, the court held
that the Appellant’s non-forcible sex acts with numerous children, including fondling and oral
sex as well as attempted vaginal penetration, “caused emotional trauma,” and was “more serious
than the ‘spanking’ and ‘touching’ found insufficient in Rickmyer.” 263 In In re Kubec, the court
of appeals upheld the commitment of an offender who had engaged in non-violent sexual
behavior as a juvenile with other juveniles and with some victims who were significantly
younger. The court observed that, “while Kubec did not use ‘force,’ he nonetheless committed
serious sexual abuse that emotionally scarred his victims.” 264 In In re Meyer, the court of
appeals, rejecting the appellant’s contention that he was not a violent offender likely to inflict
serious physical harm on his victims, held that fondling; masturbation; digital, vaginal and anal
257 In re Hoium, No. C2-98-469, 1998 WL 531814, at *3 (Minn. Ct. App. Aug. 25, 1998)
(unpublished).
258 In re Hart, No. C9-95-2057, 1996 WL 56504 (Minn. Ct. App. Feb. 9, 1996) (unpublished),
summ. aff’d (Minn. Jan. 21. 1997).
259 In re Krueger, No. C3-96-2503, 1997 WL 206802 (Minn. Ct. App. Apr. 29, 1997)
(unpublished).
260
In re Weiss, No. C8-97-1115, 1997 WL 666033 (Minn. Ct. App. Oct. 28, 1997)
(unpublished).
261
In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381 (Minn. Ct. App. June 20, 2000)
(unpublished).
262
Id. at *5.
263
In re LeMasters, No. C6-99-1179, 1999 WL 1256392, at *4 (Minn. Ct. App. Dec. 28, 1999)
(unpublished).
264
In re Kubec, No. C9-97-1673, 1998 WL 27295 (Minn. Ct. App. Jan. 27, 1998) (unpublished).
36

penetration; and performing oral sex on young victims, after grooming them, met the standard
for harmful sexual conduct. 265 In In re Howard, the court concluded that the appellant engaged
in harmful sexual conduct under both the SPP and SDP laws, despite his claim that he did not
inflict physical injury on his victims and abused only people he knew, where numerous young
girls (aged 7 to 14) testified to long-term emotional harm, where he had fondled and penetrated
them with his fingers and penis, and where he compelled two sisters to witness his sexual
intercourse with their mother for “sex education.” 266 In In re Creighton, the court rejected the
appellant’s contention that, because he did not torture or batter his victims, he was not violent. 267
The court said the relevant question is whether there was a substantial likelihood of serious
physical or emotional harm. The court also found significant the “profound psychological
devastation” inflicted, the use of force, and the size differential between Creighton and his
victims. In In re J.L.D., the court rejected the appellant’s contention that his conduct was much
less harmful than the history of sexual assaults of others committed as PPs and his claim that he
did not cause the type of harm the statute is intended to address. 268 The court found that his
serious repeated sexual assaults against his vulnerable daughters and others caused severe
emotional harm. In In re Gleason, the offender raised the same arguments raised by J.L.D. The
court rejected these claims finding that he had engaged in “repeated, forceful, sexual assaults
against his vulnerable, younger sister” which caused her severe emotional trauma. 269 In In re
Hommes, considering the utter-lack-of-power-to-control issue, the court of appeals observed:
“The digital penetration of [the adolescent 10-12-year-old girls’] vaginas was a horrendous
bodily invasion.” 270
In In re Prather, addressing a commitment under the SDP law only, the court cited expert
testimony concerning “the extreme harm that will likely be caused by an adult’s sexual contact
with children, regardless of whether it is violent or nonviolent,” and held that, “[u]nlike
Rickmyer, in this case there was extensive testimony as to the likelihood of emotional harm to
the victims.” 271 Addressing the issue of “serious emotional harm” in In re Martinelli, another
SDP commitment case, the court of appeals analogized to the “substantial emotional harm”
standard in the criminal statute relating to malicious punishment of a child. 272 The court noted
265 In re Meyer, No. C7-96-981, 1996 WL 537500 (Minn. Ct. App. Sept. 24, 1996)
(unpublished).
266
In re Howard, No. C6-96-1703, 1997 WL 228989 (Minn. Ct. App. May 6, 1997)
(unpublished).
267
In re Creighton, No. C9-97-748, 1997 WL 407802 (Minn. Ct. App. July 22, 1997)
(unpublished).
268
In re J.L.D., No. C7-97-1879, 1998 WL 147859 (Minn. Ct. App. Mar. 31, 1998)
(unpublished).
269
In re Gleason, No. C2-97-2194, 1998 WL 218223 (Minn. Ct. App. May 5, 1998)
(unpublished).
270 In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn. Ct. App. Jan. 9, 2001) (unpublished).
271 In re Prather, No. C8-98-847, 1998 WL 887539 (Minn. Ct. App. Dec. 22, 1998)
(unpublished), remanded (Minn. Feb. 24, 1999), appeal after remand, No. C0-00-987, 2000 WL
1778321 (Minn. Ct. App. Nov. 21, 2000) (unpublished).
272 In re Martinelli, No. C6-98-569, 1998 WL 613845, at *4 (Minn. Ct. App. Sept. 18, 1998)
(unpublished), remanded (Minn. Aug. 5, 1999), appeal after remand, No. C4-00-748, 2000 WL
37

that, in such a criminal prosecution, the jury is instructed to use its common sense to determine
whether emotional harm to the child was substantial. 273
One non-SPP/SDP decision may also be relevant to this issue. A year after Rickmyer, the
supreme court considered the case of In re Knops, involving an appellant who was alleged to be
mentally ill and dangerous. 274 The issue in Knops was whether the appellant’s sexual conduct
with a four-year-old girl constituted “serious physical harm” under the MI&D commitment
statute. 275 Holding that this standard was met, the supreme court distinguished Knops’ conduct
from Rickmyer’s on the ground that Knops not only touched the girl’s genital area, buttocks, and
breasts, but also digitally penetrated her vagina. Moreover, the Knops court found that serious
physical harm occurred despite the absence of severe pain to the victim, because “the focus in
cases of this nature should not be on the severity of the pain, but on the seriousness of the act and
whether it did occur.” 276
2. SDP statute—what is “sexual” conduct, standard for harmfulness,
and “rebuttable presumption” of harmfulness.
The SDP law requires that the proposed patient has engaged in a course of “harmful
sexual conduct,” and that he is highly likely to engage in such conduct in the future. As
explained earlier, the term “harmful sexual conduct” used in the SDP definition is defined in the
statute:
Subd. 7a. HARMFUL SEXUAL CONDUCT. (a) “Harmful sexual
conduct” means sexual conduct that creates a substantial likelihood of serious
physical or emotional harm to another.
(b) There is a rebuttable presumption that conduct described in the
following provisions creates a substantial likelihood that a victim will suffer
serious physical or emotional harm: [statutory provisions defining criminal sexual
conduct, 1st-4th degrees]. If the conduct was motivated by the person’s sexual
impulses or was part of a pattern of behavior that had criminal sexual conduct as a
goal, the presumption also applies to [statutory provisions defining Murder;
Manslaughter; Assault, lst-3d degrees; Robbery; Kidnapping; False
Imprisonment; Incest; Witness Tampering; Arson, 1st degree; Burglary, 1st
degree; Terroristic Threats; Harassment and Stalking]. 277
1285430 (Minn. Ct. App. Sept. 12, 2000) (unpublished), review denied (Minn. 2000), vacated
and remanded, 534 U.S. 1160, 122 S. Ct. 1171 (2002), aff’d after remand, 649 N.W.2d 886
(Minn. Ct. App. 2002), citing Minn. Stat. § 609.377 (1986).
273 Id., citing State v. Williams, 451 N.W.2d 886, 890-91 (Minn. Ct. App. 1990).
274 In re Knops, 536 N.W.2d 616 (Minn. 1995).
275 Id. at 620 (in MI&D commitments, Minn. Stat. § 253B.02, subd. 17 (1994) required an “overt
act causing or attempting to cause serious physical harm to another”).
276 Id. at 620-21. (finding that “while the penetration [of the four year old girl] did not cause
severe pain to K.B., Knop’s use of his fingers to penetrate the victim’s vagina which caused the
removal of her hymenal tissue constitutes a serious physical injury.”
277 Minn. Stat. § 253B.02, subd. 7a(a) (2009).
38

The definition of harmful sexual conduct in the SDP law was taken directly from Rickmyer. The
only difference in the wording of the two standards is the substitution of the word “emotional” in
the SDP standard for “mental” in the Rickmyer standard.
As noted above, the SDP law also contains a “rebuttable presumption that conduct
described in [certain criminal] provisions creates a substantial likelihood that a victim will suffer
serious physical or emotional harm.” 278 In one unreported decision, the court of appeals noted
that the proposed patient, who had been charged with conduct described in the statutory
provisions for second- and fourth-degree criminal sexual conduct, had pled guilty only to fifthdegree
criminal sexual conduct, which is not included in the list of crimes to which the
presumption applies. Because he was not convicted of a crime on the statutory presumption list,
the court held that the presumption of harmfulness did not apply to his acts. 279 However, in
another unreported case decided the same day, as well as an earlier case, the appellate court
reached the opposite conclusion, saying: “But appellant’s argument fails to recognize that the
statutory presumption applies if a person commits conduct that is described in the criminal
statutes; it does not matter if the person is actually convicted of such conduct.” 280
The court of appeals has held that the rebuttable presumption does not unconstitutionally
shift the burden of proof to the respondent. 281
In 1996, in Linehan III, 282 the Minnesota Supreme Court apparently put to rest any
question of the need to show violence in order to demonstrate the requisite degree of harm under
the SDP law. The supreme court addressed Linehan’s argument that the trial court had not
specifically found that he was likely to engage in seriously harmful conduct:
Linehan seems to argue that the risk of “low-level, non-violent” acts should not be
included in light of the supposed purpose of the SDP Act to commit only the most
dangerous sexual predators. But whatever the purposes of the Act, the scope of
the statute is clear. Nonviolent but sexually harmful acts are included in its reach.
The Act calls for a general determination that seriously harmful sexual conduct is
highly likely to occur. 283
278 Id. at (b).
279 In re Lentz, No. A07-670, 2007 WL 2770417, at *4 (Minn. Ct. App. Sept. 25, 2007)
(unpublished). (Nonetheless, the court in Lentz upheld the lower court’s finding that, regardless
of the presumption, Lentz’s conduct met the harmfulness standard of the SDP law).
280 In re Swedeen, No. A07-805, 2007 WL 2770440, at *8 (Minn. Ct. App. Sept. 25, 2007)
(unpublished); see also In re Hilton, No. A06-2261, 2007 WL 1532151, at *7 (Minn. Ct. App.
May 29, 2007) (unpublished).
281 In re Kindschy, 634 N.W.2d 723, 729-31 (Minn. Ct. App. 2001), review denied (Minn. 2001).
282 In re Linehan (Linehan III), 557 N.W.2d 171, 190 (Minn. 1996), vacated and remanded, 522
U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).
283 Id. (citation omitted, emphasis added).
39

In re Robb, discussed above under the SPP statute, also addressed the harmfulness of
conduct necessary under the SDP law. The court of appeals held that, unlike the SPP law, the
SDP law does not require a showing of violence. 284
The appellate court in Robb also addressed whether the SDP law requires that the harm to
be expected from the proposed patient’s conduct be greater than the harm expected from a
typical sexual assault. Because of the presumption that conduct that would violate certain
criminal statutes is harmful enough to support commitment, the court of appeals said that the
standard is reversed from that applicable to the SPP law. Under the SDP law, the court said,
conduct described in the specified statutes is sufficiently harmful to support commitment unless
it is “less serious than the conduct that typically occurs in the commission of the offenses”
specified in the statute. 285 In In re Brinkman, the court of appeals held that that, given the
victim’s age of 14, the fact that she consensually engaged in the sexual conduct did not rebut the
statutory presumption of harm. 286 In In re Allen, the court of appeals held that incest also falls
within the statutory presumption. 287 In In re Ellringer, the appellate court affirmed the trial
court’s decision that the person’s apparently sexually motivated burglaries did not fall within the
offenses covered by the statutory presumption. 288 The decision does not explain why the
sexually motivated burglary behavior would not fall within the statutory list of presumption
offenses, but said the trial court also found that the behavior, stealing women’s underwear, was
not likely to result in serious emotional harm, thus rebutting the presumption. The appellate
court said, “Although there is evidence in the record that would support an opposite conclusion
on the harmfulness issue, we defer to the district court's ability to judge the credibility of
competing experts.” 289
In In re Martin, the court of appeals held that conduct meeting the SDP commitment
standard need not involve a likelihood of physical harm, but that likely emotional harm is
sufficient. 290
In considering harmfulness of the proposed patient’s sexual conduct, the court of appeals
in In re Stone considered the examiners’ opinions regarding (1) characteristics of the victim and
Stone’s acts that were likely to be particularly harmful to victims, (2) harm that was likely to
284 In re Robb, 622 N.W.2d 571, 573 (Minn. Ct. App. 2001).
285 Id.
286 In re Brinkman, No. A08-1077, 2008 WL 5058637, at *8 (Minn. Ct. App. Dec. 2, 2008)
(unpublished).
287
In re Allan, No. A09-1607, 2010 WL 608028, at *2-3 (Minn. Ct. App. Feb. 23, 2010)
(unpublished).
288
In re Ellringer, No. A08-0346, 2008 WL 2889731, at *2 (Minn. Ct. App. July 29, 2008)
(unpublished).
289 Id. at 3.
290 In re Martin, 661 N.W.2d 632, 639 (Minn. Ct. App. 2003); see also In re Krych,
No. A07-2069, 2008 WL 1800140, at *2 (Minn. Ct. App. Apr. 22, 2008) (unpublished); In re
Schweninger, No. C1-96-362, 1997 WL 613670 (Minn. Ct. App. Dec. 15, 1997) (unpublished),
review denied (Minn. 1997), vacated and remanded, 525 U.S. 802 (1998).
40

follow from acts like Stone’s and (3) harm that had been suffered by the victims. 291 Concerning
aspects of the victim’s circumstances and Stone’s acts, the court emphasized the victim’s young
age, the repeated incidents of abuse, the escalating and different types of abuse, and the victim’s
close relationship with Stone. The experts said acts like Stones were likely to lead to posttraumatic
stress disorder and depression and increased likelihood of suicide and chemical
dependency. The court noted that one victim was already suffering from PTSD and another was
experiencing nightmares and fears of separation from her parents. 292 Likewise, many other
appellate decisions have discussed the particular evidence showing the harmfulness of a
proposed patient’s conduct. 293
In In re Washington, the appellate court held that the district court erred in finding that
an act “created a substantial likelihood of serious physical or emotional harm” where the
description of the offense was vague but involved the respondent, then a juvenile, reaching up a
girl’s blouse on a school bus without her consent, the examiner testified only that the act “could
cause” and “creates the possibility” of serious emotional harm, and the court found that the
respondent’s act “tends to create” a substantial likelihood of serious emotional harm. The
appellate court held that such evidence and findings did not meet the clear-and-convincing
standard. 294
In In re Norton, 295 the court of appeals affirmed the SDP commitment of a person who
might be termed a very intrusive exposer and window peeper. Norton had exposed himself to
girls and women many times in many different settings. On one occasion, he entered a woman’s
home at night, reached under the blankets as she was sleeping and rubbed her leg, then
masturbated in her face. He entered the home of another sleeping woman, got in bed with her
naked and lay against her back with an erection. He had entered the home of another woman to
expose himself, and engaged in similar acts in a different woman’s garage and on the porch of
still another woman. He used a ladder to peep in the second floor window of a house occupied
by several women. 296 The court held Norton’s conduct sufficiently harmful under the SDP law,
noting the examiners’ testimony that his “highly intrusive acts” were likely to lead to “significant
psychological trauma” and to damage the victims’ sense of security on a long-term basis. 297
291
In re Stone, 711 N.W.2d 831, 838-39 (Minn. Ct. App. 2006).
292
Id. at 838.
293
In re Conner, No. A06-1134, 2006 WL 3593342, at *4-5 (Minn. Ct. App. Dec. 12, 2006)
(unpublished); In re Eckman, No. A06-787 2006 WL 2807205, at *4 (Minn. Ct. App. Oct. 3,
2006) (unpublished); In re Braaten, No. A06-659, 2006 WL 2474274, at *5 (Minn. Ct. App.
Aug. 29, 2006) (unpublished); In re Gorden, No. A06-43, 2006 WL 1806464, at *4 (Minn. Ct.
App. July 3, 2006) (unpublished); In re Hill, No. A05-2438, 2006 WL 1390587, at *4 (Minn. Ct.
App. May 23, 2006) (unpublished); In re Knutson, No. A05-1204, 2005 WL 3159930, at *3
(Minn. Ct. App. Nov. 29, 2005) (unpublished); In re White, No. A05-231, 2005 WL 1804919, at
*2 (Minn. Ct. App. Aug. 2, 2005) (unpublished).
294
In re Washington, No. A08-2216, 2009 WL 1375954, at *1-2 (Minn. Ct. App. May 19, 2009)
(unpublished).
295
In re Norton, No. A05-946, 2005 WL 2979631 (Minn. Ct. App. Nov. 8, 2005) (unpublished).
296 Id. at 1-2.
297 Id. at 3-4.
41

In In re Mely, the court of appeals held that the respondent’s severe window peeping
constituted harmful sexual conduct for the purposes of the both the SPP and SDP laws. The
respondent peeped on the same woman over 300 times, typically masturbating to ejaculation
while peeping or shortly afterward. The woman felt like a prisoner in her home, fearing the
respondent would come into her home and rape her or her child. 298
In another unreported decision, In re Lentz, the court of appeals upheld the district court’s
decision that three “interference with privacy” convictions, i.e., sexually motivated window
peeping, qualified as harmful sexual conduct. 299 The court distinguished the decision in In re
Rodriguez, 506 N.W.2d 660 (Minn. Ct. App. 1993), which overturned the SPP commitment of a
“nonviolent exhibitionist,” noting that, unlike SDP commitments, the SPP law requires a finding
of “violent” conduct.” 300
In In re Krych, the court of appeals held that a 28-year-old man engaged in harmful
sexual conduct against a 15-year-old girl where he “persistently asked her to have sex with him,
accosted her on a weekly basis, and touched her breasts and buttocks without consent.” 301 In In
re Christenson, the appellate court upheld a district court’s determination of harmful sexual
conduct where a man in his 60’s touched the breasts of two developmentally disabled adult
women as well as a 13-year-old and a 10-year-old girl. 302 The court emphasized expert
testimony that Christenson chose children and vulnerable adults, that the abuse occurred
repetitively over an extended period, and that he had developed a relationship of trust with the
victims, resulting in a likelihood of increased harm. 303
There is also the question of what is “sexual conduct” within the meaning of the SDP
law. In In re Martin, 304 the proposed patient had engaged in three courses of sexually motivated
stalking behavior with two different victims, twice being arrested with “rape murder” kits in his
possession. Martin argued that the SDP law could not be applied to him (or was
unconstitutionally vague as applied to him), because he had not engaged in a sexual assault. The
court of appeals, however, held that the SDP law clearly applied to such conduct. 305 In another,
unreported, case, the appellate court held that the sexually motivated stalking and harassment of
children, even without any physical contact with them, constituted harmful sexual conduct
298
In re Mely, No. A09-2110, 2010 WL 1658591, at *1-3 (Minn. Ct. App. Apr. 27, 2010)
(unpublished).
299
In re Lentz, No. A07-670, 2007 WL 2770417, at *4 (Minn. Ct. App. Sept. 25, 2007)
(unpublished).
300
Id.
301
In re Krych, No. A07-2069, 2008 WL 1800140, 1-3 (Minn. Ct. App. Apr. 22, 2008)
(unpublished).
302
In re Christenson, No. A07-680, 2007 WL 2367627, at *1, 3-4 (Minn. Ct. App. Aug. 21,
2007) (unpublished).
303
Id. at *3.
304
In re Martin, 661 N.W.2d 632 (Minn. Ct. App. 2003).
305 Id. at 640.
42

under the SDP law. 306 In a different case, the court of appeals held that a person’s four
attempted kidnappings, three at knife point, constituted a course of harmful sexual conduct,
even though the respondent had not sexually assaulted any of his victims, where the kidnappings
were motivated by the respondent’s sexual impulses. 307
In In re Conner, 308 the court of appeals rejected the argument that sexual assaults that are
motivated by financial gain in promoting prostitution, rather than sexual gratification of the
appellant, do not constitute “sexual” conduct. The court held that the SDP law does not require a
sexual, rather than a financial, motive. 309 In In re Scott, 310 the court rejected the same argument,
that the appellant’s sexual assaults were are motivated by financial gain in promoting
prostitution, rather than sexual gratification, under both the SDP and SPP laws, stating that it was
“both a reasonable and compelling inference” that Scott’s assaults were motivated at least in part
by his sexual gratification. 311
In In re Eggert, 312 the appellate court held that the person likely to suffer serious
physical or emotional harm may be different from the object of the respondent’s sexual
desires. In that case, when Eggert’s sexual partner broke off her relationship with him, Egger
stalked and made terroristic threats to the woman’s parents. The court held that the likely
emotional harm to the parents met the statutory harmfulness requirement, because the statute
requires only likely harm “to another.” 313
The court of appeals will give deference to the district court’s determination of whether
the proposed patient’s acts were sexual in nature. 314 Nonetheless, the person’s aggressive
interactions with young girls, even though they did not include actual sexual contact, may help
establish a pattern of fixation on young girls and therefore may help establish a course of harmful
sexual conduct. 315
3. SPP and SDP Laws: Injury to past victims not necessary.
Neither the Rickmyer standard nor the standard in the SDP law require proof that the
victims actually suffered harm. Rather, the supreme court in Rickmyer stated that the court must
306 In re Peterson, No. A07-681, 2007 WL 2472890, at *8-9 (Minn. Ct. App. Sept. 4, 2007)
(unpublished).
307 In re Guetter, No. A09-1358, 2010 WL 10425, at *1-3 (Minn. Ct. App. Jan. 5, 2010)
(unpublished).
308 In re Conner, No. A06-1134, 2006 WL 3593342 (Minn. Ct. App. Dec. 12, 2006)
(unpublished).
309 Id. at *4.
310 In re Scott, No. A05-1356, 2005 WL 3470521 (Minn. Ct. App. Dec. 20, 2005) (unpublished).
311 Id. at *3.
312 In re Eggert, No. A09-0502, 2009 WL 2928775 (Minn. Ct. App. Sept. 15, 2009), review
denied (Minn. Nov. 17, 2009) (unpublished).
313 Id. at 2, 4-5.
314 In re Stone, 711 N.W.2d 831, 839 (Minn. Ct. App. 2006).
315 Id.
43

find that “there is a substantial likelihood of serious physical or mental harm being inflicted on
the victims.” 316 Many appellate court decisions have recognized that the standard is the
likelihood of harm being inflicted, rather than whether the victims actually suffered such harm. 317
This standard is sensible in light of the forward-looking purpose of the SPP and SDP
laws. Their purpose is to protect members of the public from serious harm by confining and
providing treatment to persons who have demonstrated they are likely to engage in harmful
conduct. 318 As the supreme court said in Linehan III, the SDP “Act calls for a general
determination that seriously harmful sexual conduct is highly likely to occur.” 319 In light of this
purpose, the most relevant factor is not whether past victims have suffered harm, but rather the
type of conduct in which the person is likely to engage in the future, and whether the victims are
likely to suffer serious physical or emotional harm from such acts.
Testimony and other evidence about past victims may illustrate such likely future harm,
but such evidence is not required. 320 Moreover, because the harmfulness standard considers the
harm likely to result from the proposed patient’s conduct, it is immaterial that acts of others may
have simultaneously caused harm to the victim. 321
316
Rickmyer, 519 N.W.2d at 190 (emphasis added).
317
See, e.g., In re Martin, 661 N.W.2d 632, 639 (Minn. Ct. App. 2003) (stating, “We note that
the [SDP] presumption is not that a victim actually suffers serious emotional harm as a result of a
defendant’s conduct; it is that the conduct creates a substantial likelihood of serious emotional
harm”); In re Ramey, 648 N.W.2d 260, 270 (Minn. Ct. App. 2002) (stating “[t]he standard
[under the SDP law] is not that [the conduct] must create physical or emotional harm; rather,
there must be a substantial likelihood of harm”); In re Stone, 711 N.W.2d 831, 837 (Minn. Ct.
App. 2006); In re Preston, 629 N.W.2d 104, 113 (Minn. Ct. App. 2001) (harmfulness shown
where “court received expert testimony that the character of Preston’s acts was such that
psychological harm would be a likely consequence for his victims”); In re Robb, 622 N.W.2d
571, 571 (Minn. Ct. App. 2001) (discussing Blodgett, court says: “The physical and mental harm
likely to be caused by Blodgett’s behavior was greater than the physical and mental harm likely
to be caused by other sexual assaults that involve some physical force” (emphasis added)); In re
Prather, No. C8-98-847, 1998 WL 887539, at *1 (Minn. Ct. App. Dec. 22, 1998) (unpublished),
remanded (Minn. Feb. 24, 1999), appeal after remand, No. C0-00-987, 2000 WL 1778321
(Minn. Ct. App. Nov. 21, 2000) (unpublished) (court rejected claim that victim testimony
necessary to show harm, holding that expert testimony “established the extreme harm that will
likely be caused” by acts like Prather’s).
318
Blodgett, 510 N.W.2d at 914; Linehan III, 557 N.W.2d at 180, 181, 186, 190.
319
Linehan III, 557 N.W.2d at 190.
320
In re Krych, No. A07-2069, 2008 WL 1800140, at *1-2 (Minn. Ct. App. Apr. 22, 2008)
(unpublished); In re Prather, No. C8-98-847, 1998 WL 887539, at *1 (Minn. Ct. App. Dec. 22,
1998) (unpublished), remanded (Minn. Feb. 24, 1999), appeal after remand, No. C0-00-987,
2000 WL 1778321, at *3 (Minn. Ct. App. Nov. 21, 2000) (unpublished).
321
In re Martin, 661 N.W.2d 632, 639 (Minn. Ct. App. 2003).
44

B. Likelihood Of Harmful Sexual Conduct.
1. Degree of likelihood.
The SDP law requires that the proposed patient “is likely to engage in acts of harmful
sexual conduct. 322 In Linehan III, the state supreme court held that, in this context, “likely” must
mean that it is “highly likely” that the person will engage in such conduct. The court said this
interpretation is required in order to be consistent with the clear-and-convincing-evidence
standard, and that it is compelled by due process concerns so that the proposed patient is not
required to share equally with society the risk of an erroneous commitment. 323
Similar to the SDP law, the SPP law requires that the proposed patient be “dangerous to
other persons.” The supreme court has said that this means that the person must be “likely” to
engage in sexually harmful acts. 324 While the court has not addressed whether the SPP law, like
the SDP law, requires that it be “highly likely” that the person will engage in such acts, given the
basis of the court’s ruling on this issue in Linehan III, it can be argued that the “highly likely”
standard applies under the SPP law as well. 325
2. Assessment of likelihood of sexual reoffense.
Under each statute, the trial court must assess the likelihood that the person will engage
in additional harmful sexual conduct. In Linehan I, the supreme court offered guidance to trial
courts in making this determination under the SPP law:
[T]he trial court, in predicting serious danger to the public, should consider the
following factors if such evidence is presented: (a) the person’s relevant
demographic characteristics (e.g., age, education, etc.); (b) the person’s history of
violent behavior (paying particular attention to recency, severity, and frequency of
violent acts); (c) the base rate statistics for violent behavior among individuals of
this person’s background (e.g., data showing the rate at which rapists recidivate,
the correlation between age and criminal sexual activity, etc.); (d) the sources of
stress in the environment (cognitive and affective factors which indicate that the
person may be predisposed to cope with stress in a violent or nonviolent manner);
(e) the similarity of the present or future context to those contexts in which the
person has used violence in the past; and (f) the person’s record with respect to
sex therapy programs. In reviewing psychopathic personality commitments in the
future, we will look to see whether these factors have been considered,
322
Minn. Stat. § 253B.02, subd. 18c(a)(3) (2009).
323
Linehan III, 557 N.W.2d at 180 (citing Addington v. Texas, 441 U.S. 418, 427, 99 S. Ct.
1804, 1810 (1979)).
324
Linehan I, 518 N.W.2d at 613.
325
Joelson v. O’Keefe, 594 N.W.2d 905, 911 (Minn. Ct. App. 1999), contains a confusing
discussion of this issue. It appears to say that it was unnecessary for the committing court (prior
to Linehan III) to specifically use a “highly likely” standard for SPP commitments, because it
was already clear that the clear-and-convincing standard of proof applied to such cases.
45

particularly where, as here, there is a large gap of time between the petition for
commitment and the appellant’s last sexual misconduct. 326
While Linehan I concerned only the SPP law, the supreme court subsequently held in
Linehan III that the same factors may be considered in determining likelihood of sexual
reoffense under the SDP law. 327
Several of the Linehan factors refer to “violence” or “violent behavior.” Some persons
have argued, unsuccessfully, that the likelihood factors in Linehan I require that the person have
engaged in “violent” behavior. The six dangerousness factors are taken from a book by
Professor John Monahan concerning prediction of violent behavior, 328 and the words “violent”
and “violence” in the list of factors are taken from Professor Monahan’s list. While Monahan
was specifically addressing the prediction of violence, Linehan I was addressing the prediction of
sexually harmful behavior meeting the standard in Rickmyer, decided the same day as Linehan I.
Thus, the court of appeals has held that it is the occurrence of this type of behavior, not
necessarily “violent” behavior, that is important. 329 Indeed, in one case under the SDP statute,
the court of appeals held that the Linehan factors included consideration of sexual stalking
behavior even where no contact sex offense had occurred. 330
In one case, the court of appeals held that the proposed patient’s “argument that his
conduct was not violent is contradicted by documentary evidence of his use of coercion, threats
and physical force to obtain the children’s compliance.” 331 In another case, the court emphasized
that violence of the person’s conduct is only one of the Linehan factors to be considered. 332
The supreme court has held that none of the Linehan I factors predominates over the
others. In Linehan III, Linehan argued that use of actuarial methods and base rates is the only
permissible means of risk assessment. The trial court had addressed each of the Linehan
dangerousness factors, and had concluded that the statistical evidence was of limited utility. 333
Moreover, the trial court considered several factors not included on the Linehan I list, including
Linehan’s continuing attraction to young girls and his recently displayed mental features
326 Linehan I, 518 N.W.2d at 614.
327 Linehan III, 557 N.W.2d at 189.
328 John Monahan, Predicting Violent Behavior: An Assessment of Clinical Techniques (1981),
cited in Linehan I, 518 N.W.2d at 614.
329 In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at *5 (Minn. Ct. App. June 20,
2000) (addressing commitment under SPP and SDP statutes); In re Norton, No. A05-946, 2005
WL 2979631, at *4 (Minn. Ct. App. Nov. 8, 2005) (unpublished).
330 In re Martin, No. A04-1634, 2005 WL 354088, at *4 (Minn. Ct. App. Feb. 15, 2005)
(unpublished).
331
In re Lund, No. A06-1657, 2007 WL 584175, at *2 (Minn. Ct. App. Feb. 27, 2007)
(unpublished).
332
In re Alverson, No. A06-1567, 2007 WL 447159, at 8 (Minn. Ct. App. Feb. 13, 2007)
(unpublished).
333 Linehan III, 557 N.W.2d at 178.
46

including impulsiveness and lack of remorse. 334 The supreme court rejected Linehan’s argument
that the dangerousness assessment must turn on statistical evidence, saying “dangerousness
prediction under the SDP Act is not simply a matter for statisticians.” 335 The court explained:
Linehan’s argument is contrary to the multi-factor analysis for dangerousness
prediction outlined in Linehan I . . . . Statistical evidence of recidivism is only
one of the six factors. In this case, the district court properly followed Linehan I
and evaluated evidence pertaining to each of the six factors for not error to
consider evidence not specifically listed in Linehan I prediction. It was. . . .
Linehan I did not foreclose good faith attempts by the courts to isolate the most
important factors in predicting harmful sexual conduct. 336
“It is not necessary that all six [Linehan] factors weigh in favor of commitment.” 337 Rather, the
supreme court in Linehan III said that balancing the various factors relating to dangerousness is
“largely for the district court and its assessment of expert testimony.” 338 The court of appeals
has frequently made similar holdings, usually citing Linehan III. 339 In many cases, the appellate
court has emphasized that actuarial assessment is only one of the factors to be considered, and
that it is erroneous to suggest that the exclusive focus must be on such assessments. 340
334
Id.
335
Id. at 191.
336
Id. at 189.
337
In re Pyron, No. A08-638, 2008 WL 4007433 at *3, 4 (Minn. Ct. App. Sept.2, 2008)
(unpublished).
338
Linehan III, 557 N.W.2d at 190.
339
In re Braylock, No. A06-1053, 2006 WL 3409875, at *3 (Minn. Ct. App. Nov. 28, 2006)
(unpublished) (approving trial court findings de-emphasizing weight of the actuarial tools on
facts of case); In re Deloach, No. A05-985, 2005 WL 2496010, at *4 (Minn. Ct. App. Oct. 11,
2005) (unpublished) (holding that trial court did not err in considering additional factors and
isolating most important factors); In re Martin, No. A04-1634, 2005 WL 354088, at *4 (Minn.
Ct. App. Feb. 15, 2005) (unpublished) (approving trial court’s efforts to “isolate the most
important factors”). In In re Shaw, Nos. C3-96-2131, C9-96-2196, 1997 WL 243454 (Minn. Ct.
App. May 13, 1997) (unpublished), the court of appeals held that, even if the proposed patient
could demonstrate that the statistical methods employed in some of the testing mechanisms were
wholly invalid, that would not be determinative because test results are only part of the evidence
to be considered.
340
In re Guetter, No. A09-1358, 2010 WL 10425k at *4 (Minn. Ct. App. Jan. 5, 2010)
(unpublished); In re Webber, No. A08-1903, 2009 WL 1119239, at *4 (Minn. Ct. App. Apr. 28,
2009), review denied (Minn. June 30, 2009) (unpublished); In re Pyron, No. A08-638, 2008 WL
4007433 at *3, 4 (Minn. Ct. App. Sept. 2, 2008) (unpublished); In re Rick, No. A06-1621, 2007
WL 333885, at *3 (Minn. Ct. App. Feb. 6, 2007) (unpublished) (upholding commitment where
actuarial tools showed only low to moderate likelihood, but other factors supported likelihood of
reoffense); In re Norton, No. A05-946, 2005 WL 2979631 (Minn. Ct. App. Nov. 8, 2005)
(unpublished) (rejecting appellant’s argument for sole reliance on actuarial results, saying,
“Overemphasis on one of the Linehan factors is misplaced”); In re Paulsen, No. A05-1997, 2006
WL 619119, at *2-3 (Minn. Ct. App. Mar. 14, 2006) (unpublished); In re Rustman,
47

The appellate court has noted testimony that actuarial tools, especially the “Static-99,”
are likely to underestimate actual recidivism. 341
In other cases, the court of appeals considered, in addition to the Linehan factors, the
escalation in the person’s history of sexual misconduct, his lack of remorse or empathy even
after sex offender treatment, and his reoffense while under a suspended jail sentence, 342 reoffense
while on probation despite known consequences and inadequate insight, 343 i.e., the “degree to
which the [proposed patient] appreciates the gravity of his condition.” 344
Linehan also argued in Linehan III that the district court should specify the “time
horizon” for its prediction, and suggested that such a horizon must be short term. The supreme
court responded that “the Act does not limit the prediction by time period.” 345
One of the Linehan I factors is the person’s behavioral history, considering various
factors including recency. Proposed patients in SPP/SDP commitment cases have sometimes
asserted that their sexual misconduct is remote in time, and that they have behaved well in a
prison environment. They argue that these facts show that they are unlikely to commit additional
sexual offenses. The court of appeals has observed that an appellant’s behavior as a model
prisoner and his participation in sex offender treatment may mitigate against likelihood of
reoffense. 346 However, the appellate court has held on numerous occasions that “[g]ood
behavior in the artificial atmosphere of a prison or hospital is not determinative” where other
No. A06-266, 2006 WL 1738283, at *2 (Minn. Ct. App. Jun. 27, 2006) (unpublished); In re
Flanders, No. A05-2380, 2006 WL 998208, at *6 (Minn. Ct. App. Apr. 18, 2006) (unpublished);
In re Fisher, No. A05-579, 2005 WL 2209079, at *6 (Minn. Ct. App. Sept. 13, 2005)
(unpublished).
341 In re Webber, No. A08-1903, 2009 WL 1119239, at *4 (Minn. Ct. App. Apr. 28, 2009),
review denied (Minn. June 30, 2009) (unpublished); In re Owens, No. A08-0430, 2008 WL
2889864, at *2 (Minn. Ct. App. July 29, 2008), review denied (Minn. Oct. 21, 2008)
(unpublished); In re Lentz, No. A07-670, 2007 WL 2770417, at *5 (Minn. Ct. App. Sept. 25,
2007) (unpublished); In re Mosby, No. A07-755, 2007 WL 2781806, at *2 (Minn. Ct. App.
Sept. 25, 2007) (unpublished); In re Luhmann, No. A07-912, 2007 WL 2417341, at *3 (Minn.
Ct. App. Aug. 28, 2007) (unpublished); In re Christenson, No. A07-680, 2007 WL 2367627, at
*6 (Minn. Ct. App. Aug. 21, 2007) (unpublished); In re Olson, No. A06-1601, 2007 WL 509693,
at *3 (Minn. Ct. App. Feb. 20, 2007) (unpublished); In re Deloach, No. A05-985, 2005 WL
2496010, at *4 (Minn. Ct. App. Oct. 11, 2005) (unpublished).
342 In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *6 (Minn. Ct. App. Dec. 15, 1999)
(unpublished).
343 In re Foley, No. A04-2340, 2005 WL 1154334 at *5 (Minn. Ct. App. May 17, 2005)
(unpublished).
344 In re Peria, No. A06-1452, 2007 WL 235632, at *3 (Minn. Ct. App. Jan. 30, 2007)
(unpublished).
345 Linehan III, 557 N.W.2d at 190.
346 In re Pirkl, 531 N.W.2d 902, 909-10 (Minn. Ct. App. 1995); In re Muller, No. C7-96-141,
1997 WL 600457 (Minn. Ct. App. Sept. 30, 1997) (unpublished).
48

evidence indicates likelihood of reoffense. 347 In one case, the court held that being on parole
also constituted such an “artificial environment.” 348 Conversely, the fact that a person reoffends
or engages in inappropriate sexual conduct while in prison or in treatment supports a finding that
he is likely to reoffend. 349
Likewise, in a number of cases the court of appeals has upheld SDP commitments where
the persons had been released to the community for substantial periods after their last sex
offenses, without reoffending. In several of these cases, the court relied on the fact that the
persons continually relapsed in their use of drugs or alcohol after release from prison, and that
substance use had been a factor in their sexual offenses. 350 In one of these cases, the appellant
had also used pornography, which was a precursor to his sexual offending. 351 In several other
cases, the proposed patient had engaged in “offense cycle” behaviors, including contacting
minors in person or on the internet, using alcohol, accessing and possessing pornography. 352 In
347 In re Linehan, 503 N.W.2d 142, 147 (Minn. Ct. App. 1993), rev’d on other grounds, 518
N.W.2d 609 (Minn. 1994); see also In re Pirkl, 53l N.W.2d 902, 909-10 (Minn. Ct. App. 1995);
In re Hollie, No. A09-0579, 2009 WL 2596071, at *4 (Minn. Ct. App. Aug. 25, 2009), review
denied (Minn. Oct. 28, 2009) (unpublished); In re Eberhardt, No. A06-2044, 2007 WL 738719,
at *2 (Minn. Ct. App. Mar. 13, 2007) (unpublished); In re Knutson, No. A05-1204, 2005 WL
3159930, at *4 (Minn. Ct. App. Nov. 29, 2005) (unpublished); In re Coker, No. C7-00-873, 2000
WL 1617874, at *2 (Minn. Ct. App. Oct. 31, 2000) (unpublished); In re Wilson, No. C3-00-434,
2000 WL 1182807, at *5 (Minn. Ct. App. Aug. 22, 2000) (unpublished); In re Muller, No. C7-
96-141, 1997 WL 600457 (Minn. Ct. App. Sept. 30, 1997) (unpublished); In re Sadiki, No. C3-
93-1045, 1993 WL 355906 (Minn. Ct. App. Sept. 14, 1993) (unpublished), remanded (Minn.
Jan. 24, 1995); aff’d after remand, No. C7-95-419, 1995 WL 311799 (Minn. Ct. App. May 23,
1995); In re Crocker, 1997 WL 471481 (Minn. Ct. App. 1997) (unpublished); In re Vernon, No.
C5-92-2090, 1993 WL 71535 (Minn. Ct. App. Mar. 16, 1993) (unpublished), summ. aff’d, 1994
WL 475063 (Minn. 1994).
348 In re Hammill, No. A09-1291, 2009 WL 3818393, at *3 (Minn. Ct. App. Nov. 17, 2009)
(unpublished).
349 In re Preston, 629 N.W.2d 104, 114 (Minn. Ct. App. 2001); In re Hollie, No. A09-0579, 2009
WL 2596071, at *4 (Minn. Ct. App. Aug. 25, 2009), review denied (Minn. Oct. 28, 2009)
(unpublished); In re Swedeen, No. A07-805, 2007 WL 2770440, at *7 (Minn. Ct. App. Sept. 25,
2007) (unpublished).
350 In re Lindsey, No. A07-80, 2007 WL 1323597, at *4 (Minn. Ct. App. May 8, 2007)
(unpublished); In re Eberhart, No. A06-2044, 2007 WL 738719, at *2 (Minn. Ct. App. Mar. 13,
2007) (unpublished); In re Burnham, No. A05-972, 2005 WL 2979646, at *2 (Minn. Ct. App.
Nov. 8, 2005) (unpublished); In re Yazzie, No. A05-750, 2005 WL 2130605, at 3 (Minn. Ct.
App. Sept. 6, 2005) (unpublished); In re Brown, No. A05-1500, 2006 WL 44354, at *6 (Minn.
Ct. App. Jan. 10, 2006) (unpublished); In re Tucker, No. A05-221, 2005 WL 1743823, at *3
(Minn. Ct. App. Jul. 26, 2005) (unpublished).
351 In re Burnham, No. A05-972, 2005 WL 2979646, at *2 (Minn. Ct. App. Nov. 8, 2005)
(unpublished).
352 In re Jannetta, No. A07-2049, 2008 WL 669115, at *4 (Minn. Ct. App. Mar. 11, 2008)
(unpublished); In re Foster, No. A07-1564, 2008 WL 133918, at *3 (Minn. Ct. App. Jan. 15,
49

one case, the person had engaged in violent offenses that, although not sexual assaults, were
similar to his earlier sex offenses. 353 In yet another case, during the period of release, the
appellant established a relationship giving him access to young boys despite close monitoring
and warnings to avoid such relationships. 354 And in two cases the court noted that the appellant
had been in prison and was on parole during the time he was in the community, lessening his
opportunity for reoffense. 355 Finally, in another case, the appellate court observed that the
court’s examiner concluded that the period of release in the community without reoffense was
not significant, inasmuch as the appellant had had similar periods in the past, followed by new
sex offense. 356
Some proposed patients have argued that they are unlikely to reoffend due to their
advanced age or poor physical condition. The court of appeals has upheld such commitments
where the evidence showed the person’s dangerousness, notwithstanding the limitations of age or
disability. 357 The court has noted an examiner’s testimony that “an extrafamilial pedophile . . . is
not subject to typical patterns of desistance with age.” 358
One of the Linehan factors is “the person’s record with respect to sex therapy programs.”
The court of appeals has noted that a person may properly be termed an “untreated offender”
where he has completed treatment, but then committed a sex offense afterwards. 359 And a person
who has recently completed sex offender treatment may nonetheless be found highly likely to
2008) (unpublished); In re Alverson, No. A06-1567, 2007 WL 447159, at *2-4, 6-7 (Minn. Ct.
App. Feb. 13, 2007) (unpublished).
353 In re Lindsey, No. A07-80, 2007 WL 1323597, at *4 (Minn. Ct. App. May 8, 2007)
(unpublished), review denied (Minn. July 17, 2007).
354 In re McDeid, No. C4-00-166, 2000 WL 781279, at *2 (Minn. Ct. App. June 20, 2000)
(unpublished).
355 In re Hammill, No. A09-1291, 2009 WL 3818393, at *3 (Minn. Ct. App. Nov. 17, 2009)
(unpublished); In re Yazzie, No. A05-750, 2005 WL 2130605, at 3 (Minn. Ct. App. Sept. 6,
2005) (unpublished).
356 In re White, No. A05-231, 2005 WL 1804919, at *4 (Minn. Ct. App. Aug. 2, 2005)
(unpublished).
357 In re Lindsey, No. A07-80, 2007 WL 1323597, at *4 (Minn. Ct. App. May 8, 2007)
(unpublished); In re Braylock, No. A06-1053, 2006 WL 3409875, at *3 (Minn. Ct. App.
Nov. 28, 2006) (unpublished) (noting that, under appellant’s facts, “age should not act as a
mitigating factor”); In re Williams, No. A05-1271, 2005 WL 3470517, at *7 (Minn. Ct. App.
Dec. 20, 2005) (unpublished) (noting that experts distinguished appellant from study showing
reduced likelihood of reoffense after age 40); In re Dunlavey, No. C1-97-1439, 1998 WL 2423
(Minn. Ct. App. Jan. 2, 1998) (unpublished); In re Crocker, No. C0-95-2500, 1996 WL 192974
(Minn. Ct. App. Apr. 23, 1996), aff’d (Minn. Jan. 21, 1997); In re Crocker, No. C7-97-604, 1997
WL 471481 (Minn. Ct. App. Aug. 19, 1997) (unpublished); In re Young, No. C1-94-1779, 1994
WL 654508 (Minn. Ct. App. Nov. 22, 1994) (unpublished).
358 In re Gorden, No. A06-43, 2006 WL 1806464, at 5 (Minn. Ct. App. July 3, 2006)
(unpublished).
359 In re Stone, 711 N.W.2d 831, 840 (Minn. Ct. App. 2006).
50

eoffend, especially where the person had previously completed sex offender treatment but then
reoffended. 360
Where the experts conclude that there is a high likelihood that the proposed patient will
relapse in drug or alcohol use and that, if he does, he is highly likely to sexually reoffend, the
commitment standard is met. 361 And where a person has completed chemical dependency
treatment, it is significant that he later relapsed by using drugs or alcohol. 362
In one case, the proposed patient argued that he was not highly likely to reoffend because
he was taking a chemical castration drug. The court of appeals affirmed the district court’s
rejection of that argument, noting expert testimony that the effects of the drug could be
overridden by other medication and that the sexual urge was only one part of the person’s
dangerousness, so that he needed cognitive treatment in addition to the drug treatment in order to
be safely released. 363
Linehan I did not hold that all of the listed factors must be considered in every case,
but rather that those factors should be considered “if such evidence is presented.” 364 The court of
appeals has expressed no concern where the evidence did not address base rate statistics, 365 or
where the trial court did not make findings relating to all of the Linehan I factors. 366
C. Least Restrictive Alternative.
In 1998 in In re Senty-Haugen, 367 the Minnesota Supreme Court held that the
least-restrictive-alternative requirement that applies to commitments for mental illness, mental
retardation and chemical dependency does not apply to commitments as mentally ill and
dangerous, SPP or SDP. Previously, the court of appeals had held that this requirement did
apply to SPP and SDP commitments. 368
360 In re Braaten, No. A06-659, 2006 WL 2474274, at *6-7 (Minn. Ct. App. Aug. 29, 2006)
(unpublished).
361 In re Thompson, No. A07-998, 2007 WL 2993851, at *4 (Minn. Ct. App. Oct. 16, 2007)
(unpublished).
362 In re Williams, No. A07-1813, 2008 WL 668851, at *3 (Minn. Ct. App. Mar. 22, 2008)
(unpublished).
363 In re Peria, No. A06-1452, 2007 WL 235632, at *4 (Minn. Ct. App. Jan. 30, 2007)
(unpublished).
364 Linehan I, 518 N.W.2d at 614.
365 In re Pirkl, 531 NW.2d 902, 909 (Minn. Ct. App. 1995); In re Meyer, No. C7-96-981, 1996
WL 537500 (Minn. Ct. App. Sept. 24, 1996) (unpublished).
366 In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)
(unpublished).
367 In re Senty-Haugen, 583 N.W.2d 266 (Minn. 1998).
368 In re Bieganowski, 520 NW.2d 525, 531 (Minn. Ct. App. 1994); Pirkl, 531 NW.2d at 910; In
re Ayers, 570 N.W.2d 21, 25 (Minn. Ct. App. 1997); In re Hall, No. C9-96-1940, 1997 WL
228971 (Minn. Ct. App. May 6, 1997) (unpublished).
51

In 1999, however, the Legislature enacted a new less-restrictive-alternative provision for
persons committed as MI&D, SPP or SDP. 369 The new law gives the proposed patient the
opportunity to show that there is an appropriate alternative to the state sex offender program:
In commitments under this section, the court shall commit the patient to a secure
treatment facility 370 unless the patient establishes by clear and convincing
evidence that a less restrictive treatment program is available that is consistent
with the patient’s treatment needs and the requirements of public safety. 371
The court of appeals has held that this provision does not unconstitutionally shift the burden of
proof to the proposed patient. 372
The court of appeals reviews a trial court’s decision not to adopt a less restrictive
alternative placement under a clearly erroneous standard. 373
The court of appeals has held that, while a proposed patient is provided the opportunity to
prove that a less restrictive treatment program is available, he does not have the right to be
placed in it. 374 In one case, the appellate court stated that the committing court is required to
consider less restrictive alternatives in every case, citing Minn. Stat. § 253B.09 (2004), the
provision applicable to mental illness, chemical dependency and mental retardation
commitments, rather than to the special less-restrictive alternative provisions in Minn. Stat.
369
1999 Minn. Laws, ch. 118, §§ 3, 5, codified at Minn. Stat. §§ 253B.18, subd. 1 and 253B.185,
subd. 1 (2009).
370
A “secure treatment facility,” for persons committed as SPP or SDP, means the Minnesota
Sex Offender Program. Minn. Stat. § 253B.02, subd. 18a (2009).
371
Minn. Stat. § 253B.185, subd. 1 (2009).
372
In re Kindschy, 634 N.W.2d 723, 731 (Minn. Ct. App. 2001), review denied (Minn. 2001); In
re Peria, No. A06-1452, 2007 WL 235632, at *6 (Minn. Ct. App. Jan. 30, 2007) (unpublished);
In re Paulsen, No. A05-1997, 2006 WL 619119, at *3 n.1 (Minn. Ct. App. Mar. 14, 2006)
(unpublished); In re Daniels, No. A03-623, 2003 WL 22707418, at *5 (Minn. Ct. App. Nov. 18,
2003) (unpublished).
373
See, e.g., In re Thulin, 660 N.W.2d 140, 144 (Minn. Ct. App. 2003); In re Krych,
No. A07-2069, 2008 WL 1800140, at *5 (Minn. Ct. App. Apr. 22, 2008) (unpublished); In re
Williams, No. A07-1813, 2008 WL 668851, at *3 (Minn. Ct. App. Mar. 22, 2008) (unpublished);
In re Semler, No. A06-2213, 2007 WL 969081, at *4 (Minn. Ct. App. Apr. 3, 2007)
(unpublished); In re Olson, No. A06-1601, 2007 WL 509693, at *4 (Minn. Ct. App. Feb. 20,
2007) (unpublished); In re Rick, No. A06-1621, 2007 WL 333885, at *3 (Minn. Ct. App. Feb. 6,
2007) (unpublished).
374
In re Kindschy, 634 N.W.2d 723, 731 (Minn. Ct. App. 2001); see also, e.g., In re Williams,
No. A07-1813, 2008 WL 668851, at *4 (Minn. Ct. App. Mar. 22, 2008) (unpublished); In re
Conner, No. A06-1134, 2006 WL 3593342, at *7 (Minn. Ct. App. Dec. 12, 2006) (unpublished);
In re Hopson, No. A06-976, 2006 WL 3199160, at *5 (Minn. Ct. App. Nov. 7, 2006)
(unpublished).
52

§§ 253B.18 and 253B.185, which apply to SPP and SDP commitments. 375 This reference was
apparently mistaken.
In considering alternatives, the court may consider factors such as the need for security,
whether the proposed patient needs long-term treatment, and what type of treatment is
required. 376 Supervised release under the Department of Corrections is appropriately rejected as
a less restrictive alternative where the person has previously absconded (three times) while on
supervised release. 377
All parts of the less restrictive treatment plan must meet the person’s treatment needs and
the requirements of public safety. Where a proposed plan required halfway house placement for
at least nine months, but there was no showing that a halfway house placement was available for
more than two months, the proposed patient did not meet his burden. 378 Similarly, where a
proposed patient was taking a drug that achieved “chemical castration,” but other parts of a
release plan could not be accomplished (including residence and payment for the drug), the trial
court did not err in rejecting the plan. 379
A less restrictive alternative is not appropriate unless it is presently available. 380 If a less
restrictive alternative does not exist, the court may commit the person to a more-restrictive
alternative. 381 The court cannot order that a community placement be developed, where none
375 In re Olson, No. A05-2274, 2006 WL 1073410, at *7 (Minn. Ct. App. Apr. 25, 2006)
(unpublished).
376 Bieganowski, 520 N.W.2d at 531; Pirkl, 531 N.W.2d at 910; In re Jones, No. C2-01-1293,
2001 WL 1491248, at *3 (Minn. Ct. App. Nov. 27, 2001) (unpublished); In re Larson, No. C6-
97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998) (unpublished); see also In re Swan,
No. CX-97-2041, 1998 WL 217190 (Minn. Ct. App. May 5, 1998) (unpublished) (holding it
within trial court’s discretion to reject examiner’s recommendation for halfway house, electronic
monitoring and treatment at University of Minnesota).
377 In re Coker, No. C7-00-873, 2000 WL 1617874, at *4 (Minn. Ct. App. Oct. 31, 2000)
(unpublished).
378
In re Rick, No. A06-1621, 2007 WL 333885, at *3-4 (Minn. Ct. App. Feb. 6, 2007)
(unpublished).
379
In re Peria, No. A06-1452, 2007 WL 235632, at *7-8 (Minn. Ct. App. Jan. 30, 2007)
(unpublished).
380 In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)
(unpublished); In re Dunlavey, No. C1-97-1439, 1998 WL 2423 (Minn. Ct. App. Jan. 2, 1998)
(unpublished) (court rejected proposed patient’s proposal that he live in the community with two
round-the-clock guards, where there was no showing that program existed, that it was funded, or
that proposed patient would be accepted); In re Hall, No. C9-96-1940, 1997 WL 228971 (Minn.
Ct. App. May 6, 1997) (unpublished).
381 In re Comeau, No. A08-1106, 2008 WL 5336104, at *6 (Minn. Ct. App. Dec. 23, 2008)
(unpublished), citing In re McPherson, 476 N.W.2d 520, 522 (Minn. Ct. App. 1991).
53

exists. 382 A trial court did not err in rejecting an otherwise-available alternative placement,
where there was no funding mechanism to pay for it. 383
Likewise, in order for the person to show the availability of a less restrictive alternative,
he must prove “that an alternative program exists that would be willing to accept the defendant
for judicially committed sex-offender treatment.” 384 The proposed patient must identify a
specific program that meets the statutory standard. 385 Thus, the trial court does not err in
rejecting the patient’s proposed less restrictive alternatives where he produces no evidence that
he was eligible for the programs or that they would accept him. 386
Where a person argued that he was developmentally disabled (“DD”), and therefore
should be committed only as DD rather than as SPP/SDP, but the evidence showed that he
satisfied the SPP/SDP requirements, the statute required that he be committed to a secure
treatment facility unless he showed that a DD commitment would satisfy both his treatment
needs and the requirements of public safety. 387 The trial court appropriately rejected the
argument for commitment to a state DD treatment facility where there was no evidence that the
person would be admitted to the facility, that it could treat persons with his particular needs, or
that it could provide sufficient security for the community. 388
382
In re Hall, No. C9-96-1940, 1997 WL 228971 (Minn. Ct. App. May 6, 1997) (unpublished).
383
In re Senty-Haugen, No. C9-96-1095, 1997 WL 328015 (Minn. Ct. App. June 17, 1997)
(unpublished), aff’d on other grounds, 583 N.W.2d 266 (Minn. 1998).
384
In re Peria, No. A06-1452, 2007 WL 235632, at *6 (Minn. Ct. App. Jan. 30, 2007)
(unpublished).
385
In re Brown, No. A07-593, 2007 WL 2367601, at *2 (Minn. Ct. App. Aug. 21, 2007)
(unpublished); In re Hilton, No. A06-2261, 2007 WL 1532151, at *9 (Minn. Ct. App. May 29,
2007) (unpublished).
386
In re Jannetta, No. A07-2049, 2008 WL 669115, at *4 (Minn. Ct. App. Mar. 11, 2008)
(unpublished); In re Eberhart, No. A06-2044, 2007 WL 738719, at *4 (Minn. Ct. App. Mar. 13,
2007) (unpublished); In re Fageroos, No. A06-1947, 2007 WL 509748, at *4 (Minn. Ct. App.
Feb. 20, 2007) (unpublished); In re Braylock, No. A06-1053, 2006 WL 3409875, at *4 (Minn.
Ct. App. Nov. 28, 2006) (unpublished) (appellant did not establish the proffered program was
available to him); In re Braaten, No. A06-659, 2006 WL 2474274, at *10 (Minn. Ct. App.
Aug. 29, 2006) (unpublished) (appellant had not applied to program); In re Kittrell,
No. A05-2370, 2006 WL 1390579, at *3 (Minn. Ct. App. May 23, 2006) (unpublished)
(appellant produced no specific information regarding treatment plans available); In re Yazzie,
No. A05-750, 2005 WL 2130605, at *4 (Minn. Ct. App. Sept. 6, 2005) (unpublished) (citing no
evidence that he had applied to program or that it would accept him); In re White, No. A05-231,
2005 WL 1804919, at *5 (Minn. Ct. App. Aug. 2, 2005) (unpublished) (noting that patient
produced no evidence concerning current appropriateness or availability of program); In re
Jones, No. C2-01-1293, 2001 WL 1491248, at *3 (Minn. Ct. App. Nov. 27, 2001) (unpublished).
387
In re Bracken, No. A07-2271, 2008 WL 1973159, at *3 (Minn. Ct. App. May 6, 2008)
(unpublished).
388 Id.
54

Where the proposed patient is serving a prison term and has sex offender treatment
available in prison, the court is not required to accept the prison placement as a less restrictive
alternative obviating the need for commitment. 389
The court does not have authority to revoke the person’s parole (supervised release) and
return him to prison to participate in treatment; authority to revoke parole lies solely with the
Department of Corrections. 390 Where the person has been paroled and the parole has not been
revoked, treatment in DOC is not an available less restrictive alternative. 391
A pending federal deportation proceeding does not make commitment inappropriate. If
the person meets the SPP or SDP requirements, the court “shall” commit the person. 392
Under Commitment Rule 22, a “stay of commitment” is available as a resolution only
with the agreement of both parties. 393 Where a court continues the case and reserves the right to
review the person’s treatment progress, this is in effect a “stay of commitment,” which may not
be done without the agreement of both parties. 394
D. Treatability and Availability of Treatment; Self-Incrimination In Treatment.
It is not necessary that the proposed patient be “treatable” in order to be committed. In
upholding the constitutionality of PP commitment in In re Blodgett, 395 the supreme court said:
It is next argued that a psychopathic personality condition is untreatable,
and, therefore, confinement is equivalent to life-long preventive detention. But it
is not clear that treatment for the psychopathic personality never works. It also
seems somewhat incongruous that a sexual offender should be able to prove he is
untreatable by refusing treatment . . . .
But even when treatment is problematic, and it often is, the state’s interest
in the safety of others is no less legitimate and compelling. So long as civil
389
In re Johnson, No. A04-1361, 2005 WL 89862, at *6 (Minn. Ct. App. Jan. 18, 2005)
(unpublished); In re Hopson, No. A06-976, 2006 WL 3199160, at *5 (Minn. Ct. App. Nov. 7,
2006) (unpublished).
390
In re Cox, No. A08-0910, 2009 WL 113397, at *2 (Minn. Ct. App. Jan. 20, 2009), review
denied (Minn. Mar. 31, 2009) (unpublished); In re Tolbert, No. A08-0395, 2008 WL 3898457, at
*4 (Minn. Ct. App. Aug. 26, 2008) (unpublished).
391
Id.
392
In re Richards, 738 N.W.2d 397, 400 (Minn. Ct. App. 2007).
393
In re Eberhardt, No. A06-2044, 2007 WL 738719, at *4 (Minn. Ct. App. Mar. 13, 2007)
(unpublished).
394
In re Tolbert, No. A08-0395, 2008 WL 3898457, at *5 (Minn. Ct. App. Aug. 26, 2008)
(unpublished).
395
In re Blodgett, 510 N.W.2d 910 (Minn. 1994).
55

commitment is programmed to provide treatment and periodic review, due
process is provided. 396
An appellant’s claim that the facility to which he is committed will not be able to provide
him appropriate treatment is premature at the time of the commitment. 397 A person who is
committed as SPP or SDP will have other avenues to challenge the validity of his treatment after
he is committed and is participating in the treatment program. 398 But it is impermissible to
challenge the constitutionality of the treatment one will receive by focusing on the treatment
provided to others. 399 Where a proposed patient contended the state’s treatment program was a
“sham,” but offered evidence only regarding one patient of the program, the trial court did not
abuse its discretion in determining that the evidence was irrelevant. 400
The court of appeals has held that a challenge to the adequacy of treatment is also
premature at the review hearing following the commitment facility’s 60-day report. 401
Moreover, an initial psychological and social history assessment and the opportunity to
participate in education and recreation therapy are adequate to meet any constitutional treatment
requirement in the period between the initial commitment and the review hearing. 402
The court of appeals has noted that a representative of the Minnesota Security Hospital
has testified that persons with borderline intellectual functioning can be accommodated in the
state’s treatment program. 403
396 Id. at 916 (footnote and citation omitted); see also In re Fries, No. C5-96-1997, 1997 WL
328022 (Minn. Ct. App. June 17, 1997) (unpublished). In Bailey v. Noot, 324 N.W.2d 164, 167
(Minn. 1982), the supreme court said: “Adequate treatment is a constitutional right of a civilly
committed mental patient.” This statement is apparently qualified by the statement from
Blodgett, quoted in text. See also Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 2084
(1997) (“we have never held that the Constitution prevents a State from civilly detaining those
for whom no treatment is available, but who nevertheless pose danger to others”).
397 In re Travis, 767 N.W.2d 52, 58 (Minn. Ct. App. 2009); In re Martenies, 350 N.W.2d 470,
472 (Minn. Ct. App. 1984); In re Harrison, No. A07-1181, 2007 WL 4305377, at *7 (Minn. Ct.
App. Dec. 11, 2007) (unpublished); In re Christiansen, No. A07-1290, 2007 WL 4305465, at *10
(Minn. Ct. App. Dec. 11, 2007) (unpublished); In re Larson, No. C6-97-2215, 1998 WL 236167
(Minn. Ct. App. May 12, 1998) (unpublished); see also In re Kennedy, 350 N.W.2d 484, 485
(Minn. Ct. App. 1984) (mental illness commitment case); In re Wicks, 364 N.W.2d 844, 847
(Minn. Ct. App. 1985) (mental retardation commitment case).
398 In re Travis, 767 N.W.2d 52, 59-60 (Minn. Ct. App. 2009).
399 Id. at 67.
400 In re Hince, No. C1-97-95, 1997 WL 311662 (Minn. Ct. App. June 10, 1997) (unpublished).
401 In re Barber, No. A04-2089, 2005 WL 758027, at *5 (Minn. Ct. App. Apr. 5, 2005)
(unpublished).
402 Id. at *6.
403 In re Larson, No. C6-97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998)
(unpublished).
56

The lack of an age-specific treatment for young offenders at the Minnesota Sex Offender
Program does not preclude commitment to that program. 404 Treatment need only be adequate,
not the “best possible.” 405
Where a person has been committed and is at the state treatment program, an argument
that treatment is inadequate or unavailable is not a basis to declare the commitment invalid (in a
federal habeas proceeding), although the person may have other remedies to challenge the
inadequacy of treatment. 406
A district court’s finding that the state sex offender treatment program is not actually a
treatment program, but only a detention facility, is “nothing more than dicta” where the court
does not articulate any legal conclusions or issue any relief based on the finding. 407
A person committed as an SPP, but incarcerated in prison based on a decades-long
criminal sentence, challenged his placement in a prison that did not provide sex offender
treatment, rather than a sex offender treatment facility. The court of appeals held that the “right
to treatment” issue would not be ripe until his release from prison was “relatively imminent.” 408
A claim that the proposed patient did not have an adequate opportunity for treatment
while in prison does not render the later commitment proceeding violative of due process. 409
The court of appeals has ruled that the State’s Minnesota Sex Offender Program does not
violate the Fifth Amendment’s privilege against self-incrimination by requiring participants
to admit sex offenses as part of their treatment, even if they are still within the perjury statute of
limitations. 410 The court held that, on the record in that case, neither the incrimination nor the
compulsion element of self-incrimination was established. 411 A representative of the treatment
program testified that MSOP patients could participate without disclosing identifying
404 In re Black, No. A06-2262, 2007 WL 1470592, at *7 (Minn. Ct. App. May 22, 2007)
(unpublished).
405 Id.
406 Martin v. Mooney, No. 06-1605 DSD/RLE, 2007 WL 1306409, at *20 (D. Minn. May 3,
2007); see also Nicolaison v. Ludeman, No. 07-3224 RHK/JJG, 2008 WL 508549 (D. Minn.
Feb. 21, 2008) (holding no clearly established federal right to treatment to enable release from
commitment).
407 In re Tolbert, No. A08-0395, 2008 WL 3898457, at *5 (Minn. Ct. App. Aug. 26, 2008)
(unpublished).
408 In re Thomas, No. C6-95-735, 1995 WL 465611 (Minn. Ct. App. Aug. 8, 1995)
(unpublished).
409 In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997) (unpublished).
410 Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475 (Minn. Ct. App. July 1, 2008)
(unpublished), review denied (Minn. Sept. 23, 2008).
411 Id. at *2-3.
57

information about victims. 412 And the court held that mere inability to progress in treatment due
to failure to disclose did not constitute “compulsion” for purposes of the Fifth Amendment. 413
IV. PROCEDURAL ISSUES.
A. Department Of Corrections Referral.
A commitment petition will not be dismissed merely because the Department of
Corrections (“DOC”) did not refer the case to the county attorney for possible commitment at
least a year before the person’s prison release date, as required by Minn. Stat. § 244.05, subd. 7
(2009). 414 The court of appeals has held that this provision is “directory,” not “mandatory,” and
that it is for the benefit of the county attorney, not the proposed patient. 415
Minnesota’s Commissioner of Administration, who is authorized to issue opinions
regarding the Data Practices Act, 416 has held that the fact that a person is considered for referral
or actually referred by DOC is private data under the Data Practices Act. 417
B. Criminal Procedures Not Applicable.
The court of appeals has rejected arguments that SPP and SDP cases are criminal or
quasi-criminal, so that criminal procedures must be used in such cases. 418 Specifically, the
appellate court has determined that neither a jury trial 419 nor proof beyond a reasonable doubt 420
is required.
412
Id. at *2.
413
Id. at *3.
414
In re Chamberlain, No. C6-03-281, 2003 WL 21790534, at *7 (Minn. Ct. App. Aug. 5, 2003)
(unpublished); In re Schultz, No. CX-99-1296, 1999 WL 1100941, at *2 (Minn. Ct. App. Nov.
30, 1999) (unpublished).
415
In re Schultz, No. CX-99-1296, 1999 WL 1100941, at *2 (Minn. Ct. App. Nov. 30, 1999)
(unpublished).
416
Minn. Stat. § 13.072 (2009).
417
Minn. Dep’t of Admin. Advis. Opin. 04-023,
http://www.ipad.state.mn.us/opinions/2004/04023.html.
418
In re Daby, No. C4-98-246, 1998 WL 422232, at *4 (Minn. Ct. App. July 28, 1998)
(unpublished) (rejecting quasi-criminal argument); In re Martinelli, No. C6-98-569, 1998 WL
613845, at *5 (Minn. Ct. App. Sept. 15, 1998) (unpublished), remanded (Minn. Aug. 5, 1999),
appeal after remand, No. C4-00-748, 2000 WL 1285430 (Minn. Ct. App. Sept. 12, 2000)
(unpublished), review denied (Minn. Oct. 26, 2000), vacated and remanded, 534 U.S. 1160, 122
S. Ct. 1171 (2002), aff’d after remand, 649 N.W.2d 886 (Minn. Ct. App. 2002) (rejecting
argument that, because court found that appellant committed acts for which he had never been
criminally convicted, the findings constituted criminal convictions, necessitating criminal
procedures).
419
Joelson v. O’Keefe, 594 N.W.2d 905, 911 (Minn. Ct. App. 1999); In re McEiver,
No. A04-2002, 2005 WL 704298, at *2 (Minn. Ct. App. Mar. 29, 2005) (unpublished); In re
Sargent, No. A04-1767, 2005 WL 406345, at *1-2 (Minn. Ct. App. Feb. 22, 2005) (unpublished).
58

C. Petition.
The person named as the commitment petitioner must have knowledge of the facts. 421
However, the person’s knowledge need not be direct, but may be second hand, based on review
of relevant records. 422
The requirements of prepetition screening and that the petition be accompanied by an
examiner’s statement, applicable to other types of commitments, 423 do not apply to SPP and
SDP commitments. 424 The reason for this is that, under Minn. Stat. § 253B.185, the county
attorney is responsible to determine whether good cause exists for the petition. 425 The provisions
of Minn. Stat. § 253B.07 (which contains the requirements for prepetition screening, specificity
of the petition, and the examiner’s report) do not apply to an SPP or SDP case until after the
petition has been brought. 426
In a later case, however, the court of appeals rejected the argument that the petition was
not sufficiently specific, and did not include an examiner’s report, on a different basis. 427 The
court held that the proposed patient was not prejudiced because an examiner’s statement and the
specific facts supporting the petition were subsequently provided during the commitment
process, and the proposed patient had declined an offer of additional time to review the
examiner’s report. The court did not consider whether the requirements of section 253B.07
concerning the contents of the petition and the examiner’s report applied to an SPP or SDP case
before the filing of the petition. 428
420
In re Knutson, No. A05-1204, 2005 WL 3159930, at *8 (Minn. Ct. App. Nov. 29, 2005)
(unpublished); In re Anderson, No. C8-98-976, 1998 WL 727734, at *4 (Minn. Ct. App. Oct. 20,
1998) (unpublished).
421
Minn. Stat. § 253B.185, subd. 1 (2009).
422
In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)
(unpublished); In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2,
1998) (unpublished).
423
Minn. Stat. § 253B.07, subds. l, 2 (2009).
424
In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)
(unpublished); In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2,
1998) (unpublished); In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17,
1997) (unpublished); In re Call, No. C9-93-501, 1993 WL 207824 (Minn. Ct. App. June 15,
1993) (unpublished), aff’d (Minn. Feb. 4, 1994); In re Reeves, No. C5-91-1589, 1991 WL
271528 (Minn. Ct. App. Dec. 24, 1991) (unpublished).
425
In re Reeves, No. C5-91-1589, 1991 WL 271528 (Minn. Ct. App. Dec. 24, 1991)
(unpublished).
426
In re Call, No. C9-93-501, 1993 WL 207824, at *4 (Minn. Ct. App. June 15, 1993)
(unpublished), aff’d (Minn. Feb. 4, 1994).
427
In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *2 (Minn. Ct. App. Dec. 15, 1999)
(unpublished).
428 Id.
59

The lack of an examiner’s report does not deprive the proposed patient of his due process
right to receive notice of the psychological basis for the commitment, where the “Exhibit A” to
the petition provides him that information. 429
Under certain circumstances, a petition may be dismissed without prejudice to
bringing another petition. Where the court dismisses the petition for failure to hold a hearing
within the period specified in Minn. Stat. § 253B.08, subd. 1, the dismissal is without prejudice,
and the county may refile the petition relying on the same conduct that supported the previous
petition. 430 And the court of appeals upheld the trial court’s refusal to dismiss the third petition
that had been filed, where (1) the county attorney dismissed the first two petitions without
prejudice, (2) each of the petitions named a different petitioner, (3) there were understandable
reasons for each of the dismissals, and (4) the proposed patient was being held under juvenile
court jurisdiction and the third petition was filed more than 44 days before his scheduled release.
While the court said that no abuse had occurred under these facts, it cautioned that successive
petitions may not be filed with impunity. 431
It is not improper for the county attorney to file the commitment petition shortly before
the proposed patient’s release from prison, rather than earlier in the prison term. 432
D. Parties To Proceeding.
Unless one of them is the commitment petitioner, the proposed patient cannot require that
the Commissioner of Human Services or the Commissioner of Corrections be joined as a party to
the commitment proceeding, even if the proposed patient wants to address treatment at the
commitment hearing. 433
E. Jurisdiction and Venue.
Under Minn. Stat. § 253B.185, subd. 1, an SDP or SPP commitment petition may be filed
in “the county of financial responsibility or the county where the patient is present.” 434 If the
patient is in the custody of the commissioner of corrections, the petition may be filed in the
county where the conviction for which the person is incarcerated was entered.” 435 The phrase
“county of financial responsibility” is determined under Minn. Stat. ch. 256G, which governs
429
In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997) (unpublished).
430
In re Giem, 742 N.W.2d 422, 433 (Minn. 2007).
431
In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)
(unpublished).
432
In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997) (unpublished).
433
In re Thomas, No. C6-95-735, 1995 WL 465611 (Minn. Ct. App. Aug. 8, 1995)
(unpublished).
434
Minn. Stat. § 253B.185, subd. 1, as amended by 2010 Minn. Laws ch. 357, § 9, effective
Aug. 1, 2010. Before this amendment, the statute said the petition could be filed in “the county
in which the patient has settlement or is present.” Minn. Stat. § 253B.185, subd. 1 (2009); In re
Ivey, 687 N.W.2d 666, 670 (Minn. Ct. App. 2004).
435
Minn. Stat. § 253B.185, subd. 1, as amended by 2010 Minn. Laws ch. 357, § 9.
60

financial responsibility for various human services programs. 436 Under Minn. Stat. § 256G.02,
subds. 4(c) and 6, the “county of financial responsibility” is the last county in which the person
lived outside an “excluded time” facility such as a jail, prison, treatment facility or halfway
house. Where a person is in prison even outside Minnesota (and even outside the country), his
last Minnesota county of residence outside an excluded time facility remains his county of
financial responsibility for purposes of venue of an SDP or SPP commitment case. 437 As
between counties, the priority of responsibility for filing SPP and SDP petitions is specified in
Minn. Stat. § 253B.23, subd. 1b(c). 438
Moreover, Minnesota has personal jurisdiction over a person who was imprisoned
outside Minnesota but was returned to Minnesota to serve remaining conditional release (i.e.,
parole) time, even where the order imposing the additional parole time is later determined to be
erroneous. Where the person has been returned to (and therefore is present in) Minnesota, this
state has personal jurisdiction over him and it is immaterial that he was erroneously required to
return here. 439
Similarly, Minnesota was held to have personal jurisdiction for SPP/SDP purposes where
the proposed patient was a member of the Red Lake Band of Chippewa Indians 440 and had been
under federal juvenile placements outside Minnesota for an extended period, including when the
commitment petition was brought, but the person had been placed by a county human services
agency in Minnesota residential and treatment placements within the year before the
commitment petition was filed. 441 The recent placement in the Minnesota programs constituted
an adequate connection with the state for purposes of personal jurisdiction. 442
Likewise, when a non-resident of Minnesota commits a crime here and is in a Minnesota
prison, the state has personal jurisdiction over him for purposes of an SPP/SDP commitment
even though he committed no sex crimes in this state. 443 Similarly, the state has personal
jurisdiction over the respondent based on personally serving him here, even though his presence
in Minnesota is involuntary, where he is serving a sentence in a Minnesota prison based on
crimes committed here. 444
436 Minn. Stat. § 253B.02, subd. 4c(a), as amended by 2010 Minn. Laws ch. 357, § 1, effective
Aug. 1, 2010; for the law prior to Aug. 1, 2010, see In re Ivey, 687 N.W.2d 666, 670 (Minn. Ct.
App. 2004).
437 Id.
438 As amended by 2010 Minn. Laws ch. 357, § 12, effective Aug. 1, 2010.
439 Id. at 670-71.
440 The Red Lake Band possesses a degree of sovereignty, separate from the state, that exceeds
that of the other Indian bands in Minnesota. In re John Beaulieu, 737 N.W.2d 231, 237-38
(Minn. Ct. App. 2007).
441 Id. at 235-37.
442
Id. at 235-36.
443
In re Kittrell, No. A05-2370, 2006 WL 1390579, at *2 (Minn. Ct. App. May 23, 2006)
(unpublished).
444
In re Larson, No. A08-1486, 2009 WL 1049171 at *2-3 (Minn. Ct. App. Apr. 21, 2009)
(unpublished).
61

Despite the enhanced sovereignty of the Red Lake Band of Chippewa Indians, Minnesota
nonetheless has subject matter jurisdiction to commit an enrolled member of that band who
has the requisite contacts with the state. 445 The state also has jurisdiction to commit reservationdomiciled
members of other Minnesota Indian bands. 446 The state clearly has jurisdiction to
apply the civil commitment law to enrolled tribal members who reside outside a reservation. 447
Both personal and subject matter jurisdiction are questions of law, reviewed de novo. 448
A pending federal deportation proceeding does not deprive the court of jurisdiction to
civilly commit the person as an SPP or SDP. 449
The timelines for holding hearings specified in Minn. Stat. § 253B.08 are “mandatory,”
but are not “jurisdictional.” 450 Consequently, those time limits may be waived. 451
F. Dual DOC/DHS Commitment.
The court of appeals has held that “dual commitment,” i.e., commitment of a person as an
SPP while the person has a substantial amount of his prison sentence remaining, is
permissible. 452 In such a case, the prison term and the availability of sex offender treatment in
prison does not serve as a “less restrictive alternative” obviating the need for commitment. 453
G. Prehearing Issues.
Prehearing conferences under Minn. R. Civ. P. 16 are available in civil commitment
cases. Because the commitment rules do not address them, the Rules of Civil Procedure
apply. 454
445
In re John Beaulieu, 737 N.W.2d 231, 237-41 (Minn. Ct. App. 2007).
446
In re Giishig, No. A07-0616, 2007 WL 2601423, at *12-13 (Minn. Ct. App. Sept. 11, 2007)
(unpublished).
447
Wallace Beaulieu v. Minnesota, Nos. 06-CV-4045, 06-DV-4764, 2008 WL 4104701 (D.
Minn. Aug. 28, 2008) (unpublished) (applying predatory offender registration law).
448
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *4 (Minn. Ct. App. Aug. 5, 2008),
review denied (Minn. Oct. 21, 2008) (unpublished).
449
In re Richards, 738 N.W.2d 397, 399-400 (Minn. Ct. App. 2007).
450
In re Giem, 742 N.W.2d 422, 428-29 (Minn. 2007).
451
Id. at 431.
452
In re Martenies, 350 N.W.2d 470, 472-73 (Minn. Ct. App. 1984); In re Duvall, No. C5-91-
1799, 1991 WL 276194 (Minn. Ct. App. Dec. 31, 1991) (unpublished).
453
In re Johnson, No. A04-1361, 2005 WL 89862, at *6 (Minn. Ct. App. Jan. 18, 2005)
(unpublished).
454
In re Irwin, 529 N.W.2d 366, 370 (Minn. Ct. App. 1995).
62

A party should have a reasonable opportunity to prepare a case. At least where the
proposed patient requests it, continuances should be liberally granted. 455 The court’s refusal to
grant a continuance is reviewed for “clear abuse of discretion.” 456 In addition, the person must
show that he was prejudiced by the denial of the continuance. 457 The court does not abuse its
discretion by denying the patient’s requested continuance to obtain a different attorney where the
patient repeatedly makes the request but fails to act diligently in obtaining a different attorney. 458
Changes of venue are within the discretion of the trial court. Since concerns about
prejudice from publicity usually arise in jury cases, a trial court did not abuse its discretion in an
SPP/SDP case when it denied a request for change of venue. 459 The fact that the respondent
disagrees with the trial judge’s pretrial rulings does not provide a basis to show that the judge is
biased and therefore may be removed after the deadline for removal as of right. 460
The proposed patient has the right to be present at the commitment hearing, unless the
court finds that the proposed patient has freely waived it. 461 However, there is no specific
requirement that a proposed patient be present at a pretrial deposition, at least where the
proposed patient’s attorney attended and fully presented his objections. 462 Former Commitment
Rule 10.01, 463 which accorded the proposed patient the right to be present at all hearings in the
case, 464 was omitted in the January 2000 overhaul of the rules. Currently the only reference in
rule or statute to the proposed patient’s right to be present is the right to attend the commitment
hearing under Minn. Stat. § 253B.08, subds. 3, 5 (2009).
Where the respondent fails to raise defenses to the commitment petition, such as
constitutional arguments, until after the commitment hearing and decision, he waives those
455
Id. at 371.
456
In re Hatton, No. A08-0648, 2008 WL 4301816, at *3 (Minn. Ct. App. Sept. 23, 2008),
review denied (Minn. Dec. 16, 2008) (unpublished); In re Brinkman, No. A08-1077, 2008 WL
5058637, at *9 (Minn. Ct. App. Dec. 2, 2008) (unpublished); In re Cox, No. A08-0910, 2009
WL 113397, at *2 (Minn. Ct. App. Jan. 20, 2009), review denied (Minn. Mar. 31, 2009)
(unpublished).
457
In re Hatton, No. A08-0648, 2008 WL 4301816, at *3 (Minn. Ct. App. Sept. 23, 2008),
review denied (Minn. Dec. 16, 2008) (unpublished); In re Cox, No. A08-0910, 2009 WL 113397,
at *2 (Minn. Ct. App. Jan. 20, 2009), review denied (Minn. Mar. 31, 2009) (unpublished).
458
In re Hatton, No. A08-0648, 2008 WL 4301816, at *3-4 (Minn. Ct. App. Sept. 23, 2008),
review denied (Minn. Dec. 16, 2008) (unpublished); In re Brinkman, No. A08-1077, 2008 WL
5058637, at *9 (Minn. Ct. App. Dec. 2, 2008) (unpublished).
459
In re Swan, No. CX-97-2041, 1998 WL 217190 (Minn. Ct. App. May 5, 1998) (unpublished).
460
In re Cox, No. A08-0910, 2009 WL 113397, at *5 (Minn. Ct. App. Jan. 20, 2009), review
denied (Minn. Mar. 31, 2009) (unpublished).
461
Minn. Stat. § 253B.08, subd. 5 (2009).
462
Irwin, 529 N.W.2d at 372.
463
See Minn. R. Civ. Commit. 10.01 in Minn. Stat. (1998).
464
Irwin, 529 N.W.2d at 372.
63

defenses. 465 Indeed, the court of appeals has held in an unpublished decision that, under Minn.
R. Civ. P. 12, the commitment respondent must raise any defenses to the commitment petition,
including arguments that the commitment is unconstitutional, within 20 days after service of the
commitment petition or those defenses are waived. 466 The court of appeals has suggested (but
not held) that the trial court may deny a motion to dismiss as part of the commitment order
without including a statement of reasons for denying the motion. 467
H. Privilege Against Self-Incrimination.
Because SPP and SDP commitments are not criminal or punitive, the privilege against
self-incrimination does not generally apply to such proceedings, and the proposed patient can be
required to testify against himself, even though the result may be commitment. 468
However, as in other civil proceedings, a proposed patient may invoke the privilege
against self-incrimination on a question-by-question basis if the answers may incriminate the
proposed patient with respect to pending or possible criminal charges. 469
I. Pretrial Hold Orders.
The committing court may issue an order that the proposed patient be held in a treatment
facility pending a decision on the commitment petition, if the petitioner shows that serious
physical harm to the proposed patient or others is likely if the proposed patient is not
immediately confined. 470 Under the statute, the proposed patient may not be held in a treatment
facility pursuant to such an order for more than 72 hours (exclusive of weekends and holidays)
unless the court holds a preliminary hearing.
465
In re Lunsford, No. A09-0335, 2009 WL 2747761, at *2 (Minn. Ct. App. Sept. 1, 2009)
(unpublished).
466
Id.
467
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *7 (Minn. Ct. App. Aug. 5, 2008)
(unpublished), review denied (Minn. Oct. 21, 2008).
468
Allen v. Illinois, 478 U.S. 364, 106 S. Ct. 2988 (1986); In re Leas, No. A06-1234, 2006 WL
3071404, at *3 (Minn. Ct. App. Oct. 31, 2006) (unpublished); In re Woodruff, No. C6-98-118,
1998 WL 345478 (Minn. Ct. App. June 30, 1998) (unpublished); see also In re Bobo, 376
N.W.2d 429, 433-34 (Minn. Ct. App. 1984) (in mentally ill and dangerous commitment, holding
privilege against self-incrimination inapplicable to civil commitment).
469
In re Woodruff, No. C6-98-118, 1998 WL 345478 (Minn. Ct. App. June 30, 1998)
(unpublished); see also In re E.D.F., No. C0-95-1556, 1995 WL 747943 (Minn. Ct. App. Dec.
19, 1995) (unpublished); Minnesota State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 248 N.
W.2d 733 (Minn. 1976); In re Bobo, 376 N.W.2d 429, 433-34 (Minn. Ct. App. 1984)
(considering mentally ill and dangerous commitment).
470
Minn. Stat. § 253B.07, subds. 2b and 7 (2009). Prior to 2001 and 2002 statutory
amendments, the statute provided that the court must find that “serious imminent physical harm
to the proposed patient or others is likely if the proposed patient is not confined.” The
amendments deleted the word “imminent” and added the word “immediately.” 2001 Minn.
Laws, 1st Spec. Sess., ch. 9, art. 9, § 34; 2002 Minn. Laws ch. 335, § 2.
64

At the preliminary hold order hearing, the court may consider reliable hearsay evidence,
including written materials. 471 Because commitment proceedings are civil, use of hearsay
evidence at the preliminary hold order hearing does not violate the constitutional Confrontation
Clause, which applies only in criminal cases. 472
Section 253B.07, subd. 7(b) provides that the proposed patient must receive at least 24
hours notice of the preliminary hearing. Holding the hearing with only the minimum 24 hours
notice to the proposed patient does not violate due process. 473
The trial court may not deny a hold order on the ground that the petition was brought
only shortly before the proposed patient’s scheduled release from prison. 474
Prior to 1997 amendments, the statute required that the court determine at the hold order
hearing that “probable cause exists to continue to hold the person.” 475 However consistent with
other language in the statute and its legislative history, the court of appeals held that the
petitioner needed to show only likelihood of imminent harm at the hold order hearing, and not
probable cause that all of the commitment requirements were satisfied. 476 The purpose of the
hearing was only to determine whether the hold order would be issued, not whether the case
could go forward. 477 In 1997, the statute was amended to clarify the limited showing the
petitioner must make to obtain the court hold order. 478
Few cases have examined the adequacy of evidence to support the issuance of a pre-trial
hold order. However, in one case the appellate court held that the “likelihood of serious physical
harm standard” was met based upon findings of the proposed patient’s
multiple physical acts of digital penetration and fondling of children, use of force
and manipulation on victims, and the consequent embarrassment and humiliation
of the victims. There is no requirement that petitioner establish that the victims
experienced severe pain at the time of the act. See In re Knops, 536 N.W.2d 616,
620-21 (Minn.1995) (determining that digital penetration which caused removal
of hymenal tissue constitutes serious physical injury). The physical harm inflicted
471
Minn. Stat. § 253B.07, subd. 7(b) (2009).
472
In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)
(unpublished).
473
In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997) (unpublished);
see also In re Anderson, No. c9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)
(unpublished) (where proposed patient received more than five days notice of hearing, claim of
inadequate notice was rejected).
474
In re Anderson, No. C5-96-2583 (Minn. Ct. App. Dec. 12, 1996) (order opinion).
475
Minn. Stat. § 253B.07, subd. 7(a) (1996).
476
Ayers, 570 N.W.2d at 24; In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App.
June 17, 1997) (unpublished).
477
Ayers, 570 N.W.2d at 24.
478
Minn. Stat. § 253B.07, subd. 7 (2009); Ayers, 570 N.W.2d at 23 n.2.
65

y Daniels is a combination of his manipulation and force used on particularly
vulnerable victims, the multiplicity of his assaults upon certain victims, and his
status of a trusted and authoritative person. While the actual harm to some of the
young victims might not yet be fully realized, one victim’s testimony at trial
expressed the level of lasting insecurities and fears that also constitute serious
harm. See In re Preston, 629 N.W.2d 104, 112 (Minn. App. 2001) (determining
that serious psychological harm is sufficient to meet the violence requirement); In
re Robb, 622 N.W.2d 564, 572 (Minn. App. 2001) (determining that serious harm
results from acts that are “highly likely to have a serious, lasting effect on the
victim’s sense of security and to cause a continuing sense of fear”), review denied
(Minn. Apr. 17, 2001). Therefore, the court’s hold order was based on sufficient
evidence of the likelihood of serious physical harm resulting from a release. 479
Following the commitment of the person, an appeal from the issuance of a hold order is
moot where it is based on the facts of his case rather than a broader issue. 480
J. Discovery; Obtaining And Using Records.
Discovery under the Rules of Civil Procedure is available in commitment cases. 481
With notice to the proposed patient, the county attorney may obtain the person’s records
from the state Department of Corrections (“DOC”) and probation and parole agencies to
determine whether to file a commitment petition and for use in an SPP/SDP commitment
proceeding, and no court order or discovery request is required. 482
The commitment act allows the county attorney to move the court to obtain access to any
other relevant records concerning the proposed patient to determine whether to file a
commitment petition and to support the petition at trial. 483 The proposed patient must receive
notice of the motion. 484 This provision applies, notwithstanding various laws, including the Data
Practices Act, applicable privileges, or the juvenile court laws. 485
479
In re Daniels, No. A03-623, 2003 WL 22707418, at *4 (Minn. Ct. App. Nov. 18, 2003)
(unpublished).
480
In re Christenson, No. A07-680, 2007 WL 2367627, at *7-8 (Minn. Ct. App. Aug. 21, 2007)
(unpublished); In re Daniels, No. A03-623, 2003 WL 22707418, at *4 (Minn. Ct. App. Nov. 18,
2003) (unpublished) (holding challenge to pre-trial hold order moot, but addressing it anyway); .
481
Irwin, 529 N.W.2d at 370.
482
Minn. Stat. § 253B.185, subd. 1b (2009). Before the enactment of 2008 Minn. Laws, ch. 326,
art. 2, § 10, this authority existed only for DOC records, and only if DOC had referred the case to
the county attorney. Minn. Stat. § 244.05, subd. 7 (2007)
483
Minn. Stat. § 253B.185, subd. 1b (2009).
484
Id.
485
Id.; In re Jones, No. C2-01-1293, 2001 WL 1491248, at *2 (Minn. Ct. App. Nov. 27, 2001)
(unpublished) (statute overrides privileges and data practices “Tennessen warning”
requirements); In re Bartholomay, No. C6-01-1104, 2001 WL 1645818, at *6-7 (Minn. Ct. App.
Dec. 26, 2001) (unpublished) (privileges).
66

The records access law allows the court to grant the county attorney’s motion for access
to records whenever either the Department of Corrections has made a referral for civil
commitment or the petitioner shows that the records may be relevant to the commitment
determination. However, in In re Bartholomay, 486 the court of appeals rejected a constitutional
challenge to the records access statute “as applied” to Bartholomay. Bartholomay had been
referred for possible civil commitment by the Department of Corrections, so the court of appeals
considered the constitutionality of the act only as applied to a person who had been referred. The
appellate court gave two slightly varying explanations of why the law was constitutional as
applied to Bartholomay:
Because Minn. Stat. § 244.05, subd. 7, requires the DOC to conduct a
referral assessment and such requirement applies only to inmates convicted of
criminal sexual conduct or patterned sex-offender crimes, we find that Minn. Stat.
§ 253B.185, subd. 1b, which is based upon the DOC referral in Minn. Stat.
§ 244.05, subd. 7, is sufficiently narrowly tailored to withstand constitutional
attack.
. . . . Because we find substantial support in the DOC referral letter and
assessment report for the referral of appellant as a possible candidate for
commitment as an SDP, we conclude that Minn. Stat. § 253B.185, subd. 1b,
withstands constitutional scrutiny as applied to appellant. 487
While the first quoted paragraph suggests that a DOC referral alone is enough to render the
application of the statute constitutional, the second paragraph suggests that the court must
determine that there is “substantial support in the DOC referral letter and assessment report for
the referral of appellant as a possible candidate for commitment.” Thus, the safer course for a
county attorney and a court considering a motion for access to records is to weigh whether there
are sufficient grounds shown to consider the person for possible commitment. This might be
described as an investigative probable cause standard: Are there reasonable grounds for the
county attorney to be investigating possible civil commitment? Likewise, it would be most
prudent to apply the same standard when seeking access to records where there has not been a
DOC referral, and it would seem that the application of such a standard should render the statute
constitutional under the reasoning of Bartholomay.
The court of appeals in Bartholomay held that the procedures for obtaining patient
medical records outlined in a previous supreme court decision, In re D.M.C., 488 do not apply to
the SPP/SDP records-access provision, because the SPP/SDP statute specifies its own
procedures. 489
486
In re Bartholomay, No. C6-01-1104, 2001 WL 1645818 (Minn. Ct. App. Dec. 26, 2001)
(unpublished).
487
Id. at *5.
488
In re D.M.C., 331 N.W.2d 236 (Minn. 1983).
489
In re Bartholomay, No. C6-01-1104, 2001 WL 1645818, at *6 (Minn. Ct. App. Dec. 26,
2001) (unpublished)
67

In a later case, In re Fugelseth, 490 the court of appeals again upheld the constitutionality
of the records-access provision, this time against a claim that it violated substantive due process
to provide the county attorney and court access to disclosures he was required to make to
successfully participate in prison sex offender treatment.
Even before the 2000 enactment of the records access law, the court of appeals held that
treatment and juvenile records may be used in a commitment proceeding, where the petitioner
obtains them pursuant to court order and the proposed patient has notice of the order. 491 Under
juvenile court rules, the commitment petitioner has “a legitimate interest in the child,” and
therefore may obtain the records pursuant to court order. 492
Where treatment and juvenile records are obtained pursuant to court order, the Data
Practices Act does not prevent their use as evidence at hearing. 493
The court of appeals has considered an argument by a proposed patient that psychological
assessments and pre-sentence reports should not be admitted in his commitment case, absent a
specific “Tennessen warning” under the Data Practices Act. 494 The court held that the fact that
the Tennessen warning may not have been provided when the data was collected does not make
the data inadmissible in a later judicial proceeding. 495
The court of appeals had previously considered whether testimony and records of a
proposed patient’s prison psychologist could be used against him in a commitment case, in light
of the proposed patient’s assertion that he had not been provided a Tennessen warning. The
court said: “We share appellant’s concern about the gathering and use of information and agree
that those in the system should be given the Tennessen warning when appropriate.” 496 But the
court held that the trial court did not abuse its discretion in admitting the records and testimony
where (1) the proposed patient signed a Tennessen warning earlier in his prison term, (2) he was
not asked for the information, but instead sought therapy and (3) the psychologist testified that
she had several conversations with the proposed patient about the limited confidentiality of their
meetings and the possibility that commitment would be sought. 497
490 In re Fugelseth, No. A03-1330, 2004 WL 422695, at *6-7 (Minn. Ct. App. Mar. 9, 2004)
(unpublished)
491 In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)
(unpublished).
492 Minn. R. Juv. Del. P. 30.02. subd. 3(A)(3); In re Anderson, No. C9-97-2225, 1998 WL
281914 (Minn. Ct. App. June 2, 1998) (unpublished).
493 In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)
(unpublished).
494 Minn. Stat. § 13.04, subd. 2 (2009).
495 In re Robb, 622 N.W.2d 564, 575 (Minn. Ct. App. 2001).
496 In re Larson, No. C6-97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998)
(unpublished).
497 Id.
68

As noted above, the 2000 statute, Minn. Stat. § 253B.185, subd. 1b, provides that records
may be obtained and used in the case, pursuant to court order, notwithstanding “any provision
of” the Data Practices Act. 498 This provision would appear to make it clear that government
records may be used in an SPP/SDP commitment case, even if a Tennessen warning was not
given.
The commitment rules provide that the county attorney, the proposed patient and his
attorney and the court-appointed examiner shall have access to all of the proposed patient’s
medical records. 499 In addition, the court of appeals has held that the trial court properly allowed
the examiners to have access to all of the records gathered pursuant to the county attorney’s
pretrial record motion, noting that the “Minnesota Supreme Court has ‘stressed the value of
permitting court-appointed examiners * * * full access to all available information.’” 500
The trial court does not err in preventing the commitment respondent himself from
having access to confidential records regarding an alleged victim or ongoing investigations
where his attorney is provided access to the records. 501
Where the petitioner has lawfully obtained the proposed patient’s records, petitioner may
share those records with petitioner’s expert witness, although the expert witness must then
maintain the non-public nature of the records. 502
K. Independent Medical Examinations of Victims.
The commitment respondent is not entitled to obtain independent medical examinations
of any victims under Minn. R. Civ. P. 35.01 (assuming that the victim is not the petitioner),
because that provision applies only to parties to the case. 503
L. Examiners and Expert Witnesses.
The Commitment Act provides that the court will select and appoint an examiner to
examine the patient and advise the court and, upon the request of the proposed patient, must
appoint a second examiner selected by the proposed patient. 504 The respondent’s attorney must
consult with the respondent regarding whether to request a second examiner and which examiner
498
Minn. Stat. § 253B.185, subd. 1b (2009).
499
Minn. R. Civ. Commit. 13.
500
In re Jones, No. C2-01-1293, 2001 WL 1491248, at *2 (Minn. Ct. App. Nov. 27,
2001) (unpublished) (omission in original); see also In re White, No. A05-231, 2005 WL
1804919, at *5 (Minn. Ct. App. Aug. 2, 2005) (unpublished); In re D.M.C., 331 N.W.2d
236, 238 (Minn. 1983) (mental illness commitment).
501
In re Brinkman, No. A08-1077, 2008 WL 5058637, at *9 (Minn. Ct. App. Dec. 2, 2008)
(unpublished).
502
In re Buckhalton, 503 N.W.2d 148, 152 (Minn. Ct. App. 1993); In re Anderson, No. C9-97-
2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998) (unpublished).
503
In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn. Ct. App. Jan. 9, 2001) (unpublished).
504 Minn. Stat. § 253B.07, subd. 3 (2009)
69

to select. 505 Where the trial court had appointed a second court examiner at the proposed
patient’s request, it did not err in refusing to appoint another expert to consult with the proposed
patient’s attorney. 506 This is true even where the county had retained a private expert. 507
Moreover, there is nothing in the statute that prevents the court from appointing a third examiner
selected by the county, if the court chooses to do so. 508
The district court may deny the patient’s request for an examiner for the review hearing
provided by Minn. Stat. § 253B.18, subd. 2. 509 This is true even though the commitment rules
allow the patient to have the court appoint an examiner of the patient’s choice for the review
hearing. 510 Apparently this means that the court need not allow the patient to choose a different
examiner than the one selected by the patient for the initial hearing.
The court of appeals cautioned that a proposed patient should not benefit from refusing
to be interviewed by the petitioner’s retained expert. Nonetheless, deferring to the trial court’s
discretion in weighing expert testimony, the appellate court found no error in the trial court’s
decision not to commit the person. 511
The petitioner’s expert may provide an opinion regarding the proposed patient based
simply on a review of records, without an interview. 512 Likewise, a psychologist from the state
treatment program was properly allowed to testify, even though she had not interviewed the
patient, where the patient refused to talk with the psychologist. 513
505 In re Cox, No. A08-0910, 2009 WL 113397, at *4 (Minn. Ct. App. Jan. 20, 2009), review
denied (Minn. Mar. 31, 2009) (unpublished)
506 In re Hommes, No. C2-00-831, 2001 WL 15754 (Minn. Ct. App. Jan. 9, 2001) (unpublished).
507 In re Prather, No. C8-98-847, 1998 WL 887539, at *2 (Minn. Ct. App. Dec. 22, 1998)
(unpublished), review denied (Minn. 1999), appeal after remand, No. C0-00-987, 2000 WL
1778321 (Minn. Ct. App. Nov. 21, 2000) (unpublished); In re Crocker, No. C0-95-2500, 1996
WL 192974 (Minn. Ct. App. Apr. 23, 1996) (unpublished), aff’d (Minn. Jan. 21, 1997).
508 In re Williams, 735 N.W.2d 727, 734 (Minn. Ct. App. 2007).
509 In re Hatton, No. A08-0648, 2008 WL 4301816, at *4 (Minn. Ct. App. Sept. 23, 2008)
(unpublished); In re Anderson, No. C8-98-976, 1998 WL 727734, at *3 (Minn. Ct. App. Oct. 20,
1998) (unpublished).
510 Minn. R. Civ. Commit. 23(c) (2006). At the time of the Anderson decision cited in the
previous note, an earlier version of the rule contained an identical provision. See Minn. R. Civ.
Commit. 12.03 (1998).
511 In re Wallace Beaulieu, No. C3-96-1366, 1997 WL 292316 (Minn. Ct. App. June 3, 1997)
(unpublished).
512 In re Fageroos, No. A06-1947, 2007 WL 509748, at *3 (Minn. Ct. App. Feb. 20, 2007)
(unpublished).
513 In re Woodruff, No. C2-99-689, 1999 WL 760011, at *1-2 (Minn. Ct. App. Sept. 28, 1999)
(unpublished).
70

The statutory deadline for submission of the examiner’s reports contained in Minn.
Stat. § 253B.07, subd. 5, does not apply to an expert retained by the petitioner who is not a courtappointed
examiner. 514
An examiner may base her opinion in part on hearing the testimony of the proposed
patient and others at the commitment hearing. 515 The trial court did not abuse its discretion in
allowing the petitioner’s expert to listen to the testimony of the court-appointed examiner and
then testify afterwards, and in not allowing (i.e., paying) the court-appointed examiner to attend
the entire hearing, where the court indicated it would consider those circumstances when
weighing the two experts’ testimony. 516
The court of appeals has recognized the value of permitting court-appointed examiners
full access to all available information. 517 The court affirmed the trial court’s decision to provide
the appellant’s records to the examiners where they were relevant to the commitment criteria
and were the type of records normally relied upon by examiners in such cases. 518 The court has
held that transcripts of testimony from previous criminal trials were properly provided to the
examiners, because “[a]ny evidence regarding [appellant’s] previous sexual conduct would
clearly be relevant to experts in making a proper evaluation of appellant.” 519
The mode, manner, and method of receiving testimony rest within the district court’s
sound discretion. 520 Under this principle, the trial court may allow an expert to critique another
expert’s interviewing technique, but may prohibit an expert’s testimony that misstates the
testimony of another expert. 521
The determination of whether a person qualifies as an expert is almost entirely within
the trial court’s discretion. 522 Likewise, determining the foundation required for expert
testimony is within the discretion of the trial court. 523
514 In re Fageroos, No. A06-1947, 2007 WL 509748, at *5 (Minn. Ct. App. Feb. 20, 2007)
(unpublished).
515 Id. at *4.
516 In re Lindberg, No. CX-97-855, 1997 WL 600584 (Minn. Ct. App. Sept. 30, 1997).
517 In re White, No. A05-231, 2005 WL 1804919, at *5 (Minn. Ct. App. Aug. 2, 2005)
(unpublished).
518 Id.
519 In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008),
review denied (Minn. Oct. 21, 2008) (unpublished).
520 In re Fisher, No. A05-579, 2005 WL 2209079, at 11 (Minn. Ct. App. Sept. 13, 2005)
(unpublished).
521 Id.
522 In re Martinelli, No. C6-98-569, 1998 WL 613845, at *6 (Minn. Ct. App. Sept. 15, 1998)
(unpublished), remanded (Minn. Aug. 5, 1999), appeal after remand, No. C4-00-748, 2000 WL
1285430 (Minn. Ct. App. Sept. 12, 2000) (unpublished), review denied (Minn. 2000), vacated
and remanded, 534 U.S. 1160, 122 S. Ct. 1171 (2002), aff’d after remand, 649 N.W.2d 886
(Minn. Ct. App. 2002).
71

The trial court, not the examiners, makes the ultimate decision regarding whether the
person satisfies the commitment requirements. 524 The trial court is not bound by the
examiners’ opinions, even when the two examiners agree. 525 Where the two examiners agree
the respondent does not meet the commitment criteria and the trial court nonetheless finds that he
does, the trial court will be affirmed where it adequately explains its ruling and the ruling is
supported by the record, 526 but may be reversed if it has not adequately explain why it rejected
the expert opinions. 527
Where the experts disagree, it is for the trial court to decide which expert or experts to
credit. 528 The trial court is warranted in declining to credit the testimony of an examiner who
displays an “idiosyncratic interpretation” of one of the commitment elements, and views the
523 In re Markham, No. A05-2221, 2006 WL 696540, at *6 (Minn. Ct. App. Mar. 21, 2006)
(unpublished).
524 Keiser v. Sheppard, 194 N.W.2d 286 (Minn. 1972); In re Paulsen, No. A05-1997, 2006 WL
619119, at *2 (Minn. Ct. App. Mar. 14, 2006) (unpublished) (citing In re Moll, 347 N.W.2d 67,
70 (Minn. Ct. App. 1984)).
525 Keiser, 194 N.W.2d at 288; In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn.
Ct. App. Aug. 28, 2007) (unpublished).
526 In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn. Ct. App. Aug. 28, 2007)
(unpublished)
527 In re Buckner, No. A09-1420, 2009 WL 4574169, at *2 (Minn. Ct. App. Dec. 8, 2009)
(unpublished).
528 In re Crow, No. A08-0962, 2008 WL 4778282, at *5 (Minn. Ct. App. Nov. 4, 2008), review
denied (Minn. Jan. 20, 2009) (unpublished) (stating the district court specifically determined that
one examiner’s opinion was credible, while two others were not); In re Garza, No. A08-0288,
2008 WL 2889700, at 7 (Minn. Ct. App. July 29, 2008) (unpublished); In re Ellringer, No. A08-
0346, 2008 WL 2889731, at *5 (Minn. Ct. App. July 29, 2008) (unpublished); In re Owens,
No. A08-0430, 2008 WL 2889864, at *2 (Minn. Ct. App. July 29, 2008), review denied (Minn.
Oct. 21, 2008) (unpublished); In re Lentz, No. A07-670, 2007 WL 2770417, at *3, 5 (Minn. Ct.
App. Sept. 25, 2007) (unpublished) (saying, “It was the district court’s prerogative to credit the
testimony of” one examiner over another); In re Domrose, No. A07-649, 2007 WL 2703154, at
*2 (Minn. Ct. App. Sept. 18, 2007) (unpublished) (saying, “But it is the district court’s role to
evaluate the testimony of experts,” and upholding lower court’s determination of one examiner’s
testimony “ to not be credible and persuasive on this issue”); In re Brown, No. A07-593, 2007
WL 2367601, at *2 (Minn. Ct. App. Aug. 21, 2007) (unpublished) (deferring to district court’s
assessment that examiner’s testimony regarding less-restrictive alternatives lacked credibility);
In re Black, No. A06-2262, 2007 WL 1470592, at *5 (Minn. Ct. App. May 22, 2007)
(unpublished) (saying, “The district court was in a position to judge the credibility of the three
experts and, in its discretion, to credit the opinions of two of the experts over the third”); In re
Fageroos, No. A06-1947, 2007 WL 509748, at *4 (Minn. Ct. App. Feb. 20, 2007) (unpublished);
In re Deloach, No. A05-985, 2005 WL 2496010, at *4 (Minn. Ct. App. Oct. 11, 2005)
(unpublished).
72

statutory terms in their medical, rather than their legal sense, 529 or who makes a number of
acknowledged mistakes in his assessment. 530
Where the experts in the case agree that particular actuarial risk assessment instruments
are generally accepted in the scientific community, a district court did not abuse its discretion in
considering the second prong of the Frye-Mack 531 standard, that the test complied with
appropriate standards and controls, through questioning of the experts at trial rather than by
conducting a separate Frye-Mack hearing before trial. 532 However, because the burden of
demonstrating the reliability of scientific evidence is on the proponent, it was error (albeit
harmless) for the court to in effect place the burden on the proposed patient to show that the
instruments were not administered in a reliable manner. 533
The district court does not abuse its discretion by allowing the court examiners to testify
as to the “ultimate questions” of whether the person is an SPP or SDP and whether the person
satisfies the individual elements of the commitment standard. 534 Indeed, the commitment rules
require the examiners to address these questions, and the Minnesota Rules of Evidence allow
expert testimony addressing the ultimate issue. 535
M. Attorney For Proposed Patient.
A commitment respondent has the right to a court-appointed attorney, but not an
unbridled right to have the court provide the attorney the respond would select. 536 The trial court
has the discretion to place a limit on the fees to be paid to the court-appointed attorney for the
proposed patient, where the trial court takes into account the complexity of the case and where
the fee order provides that the attorney may request that the fee limit be increased. 537
N. Previous Plea Agreements.
The supreme court has held that a criminal plea agreement providing that the court would
not refer the defendant for civil commitment at the time of sentencing did not preclude the
529 In re Freeman, No. A05-976, 2005 WL 2496001, at *2 (Minn. Ct. App. Oct. 11, 2005)
(unpublished).
530
In re Fageroos, No. A06-1947, 2007 WL 509748, at *4 (Minn. Ct. App. Feb. 20, 2007)
(unpublished).
531
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn.
1980).
532 In re Fugelseth, No. A03-1330, 2004 WL 422695, at *4-5 (Minn. Ct. App. Mar. 9, 2004).
533 Id.
534 In re Jackson, 658 N.W.2d 219, 226-27 (Minn. Ct. App. 2003); In re Givens, No. C4-02-995,
2002 WL 31554041, at *4 (Minn. Ct. App. Nov. 19, 2002) (unpublished).
535 Jackson, 658 N.W.2d at 226-27, citing Minn. R. Evid. 704 and Minn. R. Civ. Commit. 23.
536 In re Lonergan, No. A08-0394, 2008 WL 2967088, at *5 (Minn. Ct. App. Aug. 5, 2008),
review denied (Minn. Oct. 21, 2008) (unpublished).
537 In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at *6 (Minn. Ct. App. June 20,
2000).
73

county attorney, on behalf of the Department of Corrections, from bringing an SPP/SDP
commitment petition against the person at the time of his release from prison. 538 The court held
that the clear language of the plea agreement referred only to a referral by the criminal court, and
only at the time of criminal sentencing, and was not intended to preclude a later petition by
someone else, even if represented by the county attorney. 539 In a footnote, the court expressed
“strong reservations” as to whether either the county attorney or the criminal court would have
the authority to enter a plea agreement precluding a later SPP/SDP commitment petition. 540
O. Collateral Estoppel Effect of Previous Commitment Proceedings and
Previous Criminal Proceedings.
A prior unsuccessful commitment proceeding does not preclude a later one, where the
patient’s condition or circumstances have changed making a new petition appropriate. Collateral
estoppel does not apply in such a situation. 541 In addition, collateral estoppel does not apply
where the previous petition was dismissed by the county attorney before trial. 542 Nor does
collateral estoppel bar a new petition by a different county than the one that brought the prior
petition. 543
Dismissal of charges in a previous criminal proceeding does not bar a determination in a
later commitment proceeding that the person committed the act in question, because the criminal
court did not determine that the act did not occur. 544 In addition, because of the higher standard
of proof in criminal cases, an act may be proved in a civil commitment case even though the
person has been acquitted of the act in a criminal prosecution. 545
538 In re Ashman, 608 N.W.2d 853 (Minn.), cert. denied, 531 U.S. 850 (2000), appeal after
remand, No. C8-00-1921, 2001 WL 379107 (Minn. Ct. App. Apr. 17, 2001) (unpublished).
539 Ashman, 608 N.W.2d at 859.
540 Id. at 859 n.7.
541 In re McPherson, 476 N.W.2d 520, 521 (Minn. Ct. App. 1991) (petition alleging mental
retardation); In re Anderson, No. A06-2008, 2007 WL 824019, at *5 (Minn. Ct. App. Mar. 20,
2007) (unpublished); In re Eberhart, No. A06-2044, 2007 WL 738719, at *1 (Minn. Ct. App.
Mar. 13, 2007) (unpublished); In re Alverson, No. A06-1567, 2007 WL 447159, at *10-11
(Minn. Ct. App. Feb. 13, 2007) (unpublished).
542 In re Anderson, No. A06-2008, 2007 WL 824019, at *5 (Minn. Ct. App. Mar. 20, 2007)
(unpublished); In re Eberhart, No. A06-2044, 2007 WL 738719, at *1 (Minn. Ct. App. Mar. 13,
2007) (unpublished).
543 Id.
544 In re Anderson, No. A06-2008, 2007 WL 824019, at *6 (Minn. Ct. App. Mar. 20, 2007)
(unpublished).
545 In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (involving mentally ill and dangerous
commitment).
74

However, the commitment respondent may not dispute the prior conviction, because a
“person convicted of a crime may not attack a valid criminal conviction in a subsequent civil
proceeding.” 546
P. Deadlines for Hearing.
Minnesota Statutes § 253B.08, subd. 1, specifies deadlines for holding the commitment
hearing. In SPP and SDP cases, the hearing must be held within 90 days after the filing of the
petition; this period may be extended for up to 30 additional days, for good cause. 547 The statute
states that the petition must be dismissed if the hearing is not held within the specified time.
Where the court finds good cause to extend the hearing as allowed by the statute, the extension
does not violate the respondent’s due process rights. 548 A provision allowing the respondent to
demand an immediate hearing was amended in 2008 so that it no longer applies to SPP and SDP
cases. 549
The supreme court has held that the time restrictions in section 253B.08, subd. 1, are
“mandatory” and that the case must be dismissed if the time limits are not met, but that these
restrictions do not define or limit subject matter jurisdiction.” 550 Therefore, the proposed patient
may waive these time requirements, either expressly or by conduct. 551 A proposed patient
waived the statutory hearing deadline where his attorney scheduled an examination by the
court examiner for a date after the expiration of the 44 days (the time allowed for hearing before
a 2005 amendment), 552 by giving the court a trial readiness date after the deadline, 553 and by
making a pretrial motion concerning records that necessitated briefing after the deadline. 554 The
proposed patient will be bound by his counsel’s waiver unless the record shows that the proposed
patient articulated instructions to his counsel not to waive the time limit. 555
Where the petition is dismissed for failure to hold a hearing within the required period,
the dismissal is without prejudice, and the county may re-file the petition relying on the same
conduct that supported the previous petition. 556
546 In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008)
(unpublished), review denied (Minn. Oct. 21, 2008), citing Noske v. Friedberg, 670 N.W.2d 740,
744 (Minn. 2003).
547 Minn. Stat. § 253B.08, subd. 1 (2009).
548 In re Larson, No. A08-1486, 2009 WL 1049171, at *7 (Minn. Ct. App. Apr. 21, 2009)
(unpublished), review denied (Minn. June 30, 2009).
549 2008 Minn. Laws, ch. 299, § 12.
550 In re Giem, 742 N.W.2d 422, 428-29 (Minn. 2007).
551 Id. at 431-32.
552 In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)
(unpublished).
553 In re Hall, No. C9-96-1940, 1997 WL 228971 (Minn. Ct. App. May 6, 1997) (unpublished).
554 In re Buckhalton, 503 N.W.2d 148, 151 (Minn. Ct. App. 1993).
555 In re Anderson, No. C9-97-2225, 1998 WL 281914 (Minn. Ct. App. June 2, 1998)
(unpublished) (citing former Minn. R. Civ. Comm. 4.06(d) in Minn. Stat. (1998)).
556 In re Giem, 742 N.W.2d 422, 433 (Minn. 2007).
75

Q. Trial.
The commitment rules do not allow a proposed patient to represent himself, and a trial
court did not abuse its discretion in denying the proposed patient’s motion to represent himself,
where the court did allow the proposed patient to participate in the cross-examination of some
witnesses. 557
Use of depositions at trial is governed by the Rules of Civil Procedure. 558 Thus,
deposition testimony could be used over the proposed patient’s objection where a witness was
out of state. 559 And the trial court did not abuse its discretion in finding that there were
“exceptional circumstances” allowing the use of a deposition of a victim, based on the victim’s
fear of testifying in the proposed patient’s presence, and the fact that she did testify at trial, albeit
outside the proposed patient’s immediate presence. 560
Testimony of a witness by telephone or interactive TV or other electronic means is
permissible if 24 hours notice is given to the other party prior to the hearing and the court
approves it. 561
Sequestration of witnesses, to avoid harmonization of their testimony, rests in the
discretion of the trial court. 562 A person challenging the court’s refusal to sequester witnesses
must show prejudice resulting from the decision. 563
Allowing two victims to testify outside the presence of the proposed patient was not
an abuse of discretion where (1) the witnesses were in the presence of judge, so the judge could
observe indicia of credibility and (2) the proposed patient and his attorney were in a separate
room but could hear the testimony, and the attorney could question the witnesses. The
Confrontation Clause did not bar this practice, since it does not apply to civil proceedings. 564
The proposed patient cannot complain that he had inadequate time to prepare for a
witness’s testimony where he rejects the trial court’s offer of a continuance to prepare. 565
557 Irwin, 529 NW.2d at 371.
558 Id. at 372.
559 Id.
560 Id.
561 Minn. R. Civ. Commit. 14. Prior to the adoption of this rule, the court of appeals had held
that telephone testimony over the objection of the proposed patient is impermissible. See
Bieganowski, 520 N.W.2d at 528.
562 In re Meyer, No. A07-460, 2007 WL 2770186, at *5 (Minn. Ct. App. Sept. 25, 2007)
(unpublished).
563 Id.
564 Irwin, 529 N.W.2d at 372-73.
565 In re Fageroos, No. A06-1947, 2007 WL 509748, at *5 (Minn. Ct. App. Feb. 20, 2007)
(unpublished).
76

The trial court has discretion to limit the length of cross-examination, and such limits
will be held erroneous only if the discretion is abused. 566 And the trial court had discretion to
preclude cross-examination of a victim about sexual abuse by other persons, out of concern that
such questioning would unnecessarily “revictimize” the witness. 567 This is particularly true
because SDP commitment does not require a showing of actual harm to the victim, but only that
the proposed patient’s conduct “create ‘a substantial likelihood of serious emotional harm.’” 568
The court may reopen the trial to take additional evidence if the standard for a new
trial under Minnesota Rules of Civil Procedure 59.01(d) is satisfied, i.e., “[m]aterial evidence,
newly discovered, which with reasonable diligence could not have been found and produced at
the trial.” 569 The proposed patient’s behavior while being held at the Minnesota Sex Offender
Program pending a decision in the case may constitute “material new evidence” warranting the
reopening of the trial. 570 On appeal, the reopening of the trial is reviewed under an abuse-ofdiscretion
standard. 571 However, it is not an abuse of discretion to prohibit the proposed patient
from offering an affidavit from his mother along with his written closing argument, where the
evidence could have been offered during the course of the trial and providing it in an affidavit
following trial foreclosed any cross-examination. 572
R. Evidentiary Issues.
Minnesota Statutes § 253B.08, subd. 7 (2009), provides: “The court shall admit all
relevant evidence at the hearing. The court shall make its determination upon the entire record
pursuant to the rules of evidence.” Similarly, Commitment Rule 15 states: “The Court may
admit all relevant, reliable evidence, including but not limited to the respondent’s medical
records, without requiring foundation witnesses.”
In In re Williams, 573 the court of appeals held that, except for the rules relating to
relevance, the Rules of Evidence do not directly apply to civil commitment cases. The court
said that the statutory language “shall make its determination upon the entire record pursuant to
the rules of evidence” refers only to the relevance determination. 574
566 In re Preston, 629 N.W.2d 104, 114-15 (Minn. Ct. App. 2001).
567 In re Krych, No. A07-2069, 2008 WL 1800140, at *2 (Minn. Ct. App. Apr. 22, 2008)
(unpublished).
568 Id. (citing In re Martin, 661 N.W.2d 632, 638 (Minn. Ct. App. 2003)).
569 In re Meyer, No. A07-460, 2007 WL 2770186, at *5 (Minn. Ct. App. Sept. 25, 2007)
(unpublished).
570 Id.
571 Id.; In re Cox, No. A08-0910, 2009 WL 113397, at *3 (Minn. Ct. App. Jan. 20, 2009), review
denied (Minn. Mar. 31, 2009) (unpublished).
572 In re Domrose, No. A07-649, 2007 WL 2703154, at *4 (Minn. Ct. App. Sept. 18, 2007)
(unpublished).
573 In re Williams, 735 N.W.2d 727 (Minn. Ct. App. 2007); see also In re Lee, No. C0-02-1089,
2002 WL 31894696, at *4 (Minn. Ct. App. Dec. 31, 2002) (unpublished) (same holding in
chemical dependency commitment case).
574 Williams, 735 N.W.2d at 730-31.
77

The appellate court in Williams upheld the district court’s decision to admit and consider
summaries of victims’ accounts of Williams’ offenses. But the appellate court emphasized the
district court’s careful consideration of the reliability of the victims’ accounts, noting that the
district court had “diligently vetted” the challenged exhibits “and examined the reliability of each
statement, line-by-line,” excluding many statements as unreliable. 575 Considering Williams’s
argument that the admission of hearsay statements violated his due process rights, the court of
appeals said:
[W]e do not lightly dismiss Williams’s concern about fairness as it regards the
consideration of hearsay. We observe that the trustworthiness of evidence is the
primary concern of the rules of evidence generally and of the hearsay rule
particularly. The purpose of the hearsay rule with its various exceptions is to
prevent unreliable evidence from infecting the fairness of process. 576
The court then said:
[W]e are persuaded that the district court’s thoughtful preview of offered
evidence satisfies the concern about trustworthiness of evidence in this case so
that admission of the challenged hearsay evidence about Williams’s history of
sexual misconduct does not offend his right to a fundamentally fair proceeding. 577
The court also noted that the Confrontation Clause does not come into play because it does not
apply to commitment proceedings. 578
The court commented that the lower court’s reliability determination was similar to a
court’s determination that evidence satisfies the “residual hearsay exception” of Minn. R.
Evid. 807—that the evidence have circumstantial guarantees of trustworthiness that are
equivalent to the hearsay exceptions specifically provided in the Rules of Evidence. 579
In In re Blaylock, an unpublished opinion after Williams, the appellate court upheld the
admission of two apparently reliable victims’ statements in police reports even though the
district court did not recite that it had “carefully vetted” or done a “line-by-line” review of the
challenged statements. 580 The appellate court said, “Although the district court in Williams
‘examined the reliability’ of each challenged statement ‘line-by-line,’ no statute or caselaw
requires that approach. The statements need simply bear ‘indicia of reliability’ to be considered,
575
Id. at 731-32.
576
Id. at 732.
577
Id.
578
Id. (citing In re Irwin, 529 N.W.2d 366, 373 (Minn. Ct. App. 1995)).
579
Id.at 732-33.
580
In re Blaylock, No. A09-0153, 2009 WL 2151301, at *3 (Minn. Ct. App. July 21, 2009)
(unpublished).
78

unless they are shown to be false or unreliable.” 581 But the appellate court held that, absent an
explanation from the district court of why it found the statements reliable, the appellate court
would not consider two other victims’ police statements that were “shaky” or where
“circumstances surrounding the accounts suggest doubt concerning their reliability.” 582 In
another unpublished opinion, In re Pittman, the appellate court upheld the admission of victim
statements based on Williams, saying, “The statements made by the victims are internally
consistent and are generally consistent with each other, which lends some corroboration to the
victims' claims.” 583
A presumption in favor of admissibility applies in commitment cases. 584 “The decision
of whether to admit or exclude evidence is within the district court’s discretion and will be
reversed only if the court has clearly abused its discretion.” 585
As noted above, Commitment Rule 15 states: “The Court may admit all relevant,
reliable evidence, including but not limited to the respondent’s medical records, without
requiring foundation witnesses.” This provision means, at least, that foundation testimony is
not necessary to admit such evidence where the court finds it to be reliable.
Before the ruling in Williams that the evidentiary rules do not strictly apply to
commitment cases, the appellate court issued a number of decisions regarding the
admissibility of evidence in SPP and SDP commitment cases.
The trial court did not abuse its discretion by admitting hearsay statements of a victim
under Minn. R. Evid. 804(b)(5), where (1) the victim could not be found, (2) the circumstances
of the victim’s confiding the information to a friend suggested reliability, (3) the victim’s
statements were partially corroborated by the friend’s own observations and (4) the proposed
patient had admitted some of the facts previously related by the victim. 586 In another case,
however, the appellate court assumed, without deciding, that admission of hearsay statements of
sex offense victims within police records was improper, at least where there was no separate
determination of the reliability of the statements. 587 And the appellate court in a different case
held that the trial court lacked sufficient evidence to support a finding that the proposed patient
581
Id.
582
Id.
583
In re Pittman, No. A09-1931, 2010 WL 1541453, at *4 (Minn. Ct. App. Apr. 20, 2010)
(unpublished).
584
Id.at 731.
585
In re Ramey, 648 N.W.2d 260, 270 (Minn. Ct. App. 2002); In re Robb, 622 N.W.2d 564, 571
(Minn. Ct. App. 2001) (saying, “Absent erroneous interpretation of the law, the question of
whether to admit or exclude evidence is within the trial court's discretion”).
586
Irwin, 529 N.W.2d at 374.
587
In re Woodruff, No. C6-98-118, 1998 WL 345478, at *1 (Minn. Ct. App. June 30, 1998)
(unpublished) (holding that, if admission of hearsay statements of alleged victims in police
records was error, it was not prejudicial because there was sufficient other evidence of sexual
misconduct).
79

had sexually assaulted an alleged victim where the finding was based only on information in a
pre-petition screening report. 588
“A ‘person convicted of a crime may not attack a valid criminal conviction in a
subsequent civil proceeding.’” 589 Where a former victim is unavailable, the transcript of the
person’s previous testimony is not hearsay if the commitment respondent had an opportunity to
cross-examine the witness in the earlier criminal trial. 590
A pre-petition screening report was admissible under Minn. R. Evid. 803(8) as a report
by an agency made pursuant to law as to which matters there was a duty to report, unless the
sources of information or other circumstances indicate lack of trustworthiness. 591 Department
of Corrections assessments were properly admitted under the same provision, even where they
contained opinions. 592
The trial court’s consideration of possibly inadmissible hearsay is not ground for reversal
of the commitment where there was other sufficient evidence to satisfy the disputed commitment
requirement. 593
In two cases, the court of appeals held that a trial court did not abuse its discretion in
allowing victims to testify, even though the facts of the assaults were established by plea
records 594 or the proposed patient was willing to stipulate to the acts. 595 And the trial court did
not err in allowing its examiner to listen to the victims’ testimony to form her final opinion to be
provided to the court. 596
588
In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)
(unpublished).
589
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008)
(unpublished), review denied (Minn. Oct. 21, 2008) (quoting Noske v. Friedberg, 670 N.W.2d
740, 744 (Minn.2003)).
590
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008)
(unpublished), review denied (Minn. Oct. 21, 2008) (citing Minn. R. Evid. 804(b)(1)).
591
Id.
592
In re Schultz, No. CX-99-1296, 1999 WL 1100941, at *3 (Minn. Ct. App. Nov. 30, 1999)
(unpublished).
593
In re Woodruff, No. C6-98-118, 1998 WL 345478, at *1 (Minn. Ct. App. June 30, 1998)
(unpublished) (holding that, if admission of hearsay statements of alleged victims in police
records was error, it was not prejudicial because there was sufficient other evidence of sexual
misconduct); In re Fries, No. C5-96-1997, 1997 WL 328022 (Minn. Ct. App. June 17, 1997)
(unpublished).; see also In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App.
Jan. 13, 2004) (unpublished) (holding that there was insufficient evidence to support findings
regarding two victims, but findings regarding remaining victims were sufficient to constitute
“course of harmful sexual conduct”).
594
In re Beals, No. C9-92-2335, 1993 WL 52180 (Minn. Ct. App. Mar. 2, 1993) (unpublished),
aff’d (Minn. Feb. 4, 1994).
595
In re Swan, No. CX-97-2041, 1998 WL 217190 (Minn. Ct. App. May 5, 1998) (unpublished).
596 Id.
80

A committing court did not violate the proposed patient’s attorney-client privilege by
relying on the fact that he began “showing insight” only after conferring with his attorney after
the first meeting with a court examiner. 597
Consistent with the commitment statute, the court of appeals has held that a proposed
patient’s counseling and treatment files are not privileged, and may be considered in a
commitment case. 598 A trial court broadly construed the statutory provision to waive privileges
for any form of therapy, even forms not specifically mentioned in the statute. 599 Nor is there a
privilege for the proposed patient’s self-disclosures in prior treatment, 600 and the trial court
does not err in admitting and considering such self-disclosures. 601 Nor does the trial court err in
crediting the proposed patient’s previous admissions over his current denials in his commitment
trial. 602 A trial court does not abuse its discretion in admitting the proposed patient’s juvenile
records, because it “would have been impossible for the examiners to complete a thorough
analysis of the necessary factors without access to appellant’s entire history including his
juvenile history. 603
The district court does not abuse its discretion by allowing the court examiners to testify
as to the “ultimate questions” of whether the person is an SPP or SDP and whether the person
satisfies the individual elements of the commitment standard. 604 Indeed, the commitment rules
require the examiners to address these questions, and the Minnesota Rules of Evidence allow
expert testimony addressing the ultimate issue. 605
The determination of whether a person qualifies as an expert is almost entirely within
the trial court’s discretion. 606 Likewise, determining the foundation required for expert
testimony is within the discretion of the trial court. 607
597 Id.
598 In re Robb, 622 N.W.2d 564, 575-76 (Minn. Ct. App. 2001); In re Call, No. C9-93-501, 1993
WL 207824 (Minn. Ct. App. June 15, 1993) (unpublished), aff’d (Minn. Feb. 4, 1994).
599 In re Larson, No. C6-97-2215, 1998 WL 236167 (Minn. Ct. App. May 12, 1998)
(unpublished) (court applied waiver to psychologist, even though statute at time did not include
psychologists).
600 In re Muller, No. C7-96-141, 1997 WL 600457 (Minn. Ct. App. Sept. 30, 1997)
(unpublished).
601 In re Comeau, No. A08-1106, 2008 WL 5336104, at *1-3 (Minn. Ct. App. Dec. 23, 2008)
(unpublished).
602 In re Rask, Nos. A08-1312, A08-1551, 2009 WL 511943, at *1 (Minn. Ct. App. Feb. 26,
2009) (unpublished)
603 In re Folson, No. A07-1916, 2008 WL 853597, at *1 (Minn. Ct. App. Apr. 1, 2008)
(unpublished).
604 In re Jackson, 658 N.W.2d 219, 226-27 (Minn. Ct. App. 2003); In re Givens, No. C4-02-995,
2002 WL 31554041, at *4 (Minn. Ct. App. Nov. 19, 2002) (unpublished).
605 Jackson, 658 N.W.2d at 226-27 (citing Minn. R. Evid. 704 and Minn. R.Civ. Commit. 23).
606 In re Martinelli, No. C6-98-569, 1998 WL 613845, at *6 (Minn. Ct. App. Sept. 15, 1998)
(unpublished), remanded (Minn. Aug. 5, 1999), appeal after remand, No. C4-00-748, 2000 WL
81

Where the experts in the case agree that particular actuarial risk assessment
instruments are generally accepted in the scientific community, a district court did not abuse its
discretion in considering the second prong of the Frye-Mack 608 standard, that the test complied
with appropriate standards and controls, through examination of the experts at trial rather than by
conducting a separate Frye-Mack hearing before trial. 609 However, because the burden of
demonstrating the reliability of scientific evidence is on the proponent, it was error (albeit
harmless) for the court to in effect place the burden on the proposed patient to show that the
instruments were not administered in a reliable manner. 610
While the results of polygraph tests are generally not admissible, “Minnesota has
followed the majority of states that admit voluntary admissions made during a polygraph
examination.” 611 Statements made during the pre-examination portion of the polygraph are also
admissible. 612
The trial court properly declined to take judicial notice of journal articles regarding
adolescent brain development because they were not “sources whose accuracy cannot reasonably
be questioned” and the experts at trial had not relied on the articles nor indicated familiarity with
them. 613
A trial court did not err in admitting police reports and Department of Corrections
Documents where they were considered by the experts and the trial court determined that they
were trustworthy. Such evidence is admissible under Minn. R. Evid. 703(b) to show the basis
for the expert’s opinion, even though the trial court incorrectly considered the trustworthiness
of the evidence under the business records exception rather than Rule 703(b). 614
It is not an abuse of discretion to prohibit the proposed patient from offering an affidavit
from his mother along with his written closing argument, where the evidence could have been
1285430 (Minn. Ct. App. Sept. 12, 2000) (unpublished), review denied (Minn. 2000), vacated
and remanded, 534 U.S. 1160, 122 S. Ct. 1171 (2002), aff’d after remand, 649 N.W.2d 886
(Minn. Ct. App. 2002).
607
In re Markham, No. A05-2221, 2006 WL 696540, at *6 (Minn. Ct. App. Mar. 21, 2006)
(unpublished).
608
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn.
1980).
609 In re Fugelseth, No. A03-1330, 2004 WL 422695, at *4-5 (Minn. Ct. App. Mar. 9, 2004).
610 Id.
611 In re Anderson, No. A06-2008, 2007 WL 824019, at *7 (Minn. Ct. App. Mar. 20, 2007)
(unpublished).
612 Id.
613 In re Shell, No. A08-1043, 2009 WL 1182152, at *7 (Minn. Ct. App. May 5, 2009)
(unpublished).
614 In re Robb, 622 N.W.2d 564, 575 (Minn. Ct. App. 2001).
82

offered during the course of the trial and providing it in an affidavit following trial foreclosed
any cross-examination. 615
S. Standard of Proof; Evaluation of Evidence
The standard of proof in SPP/SDP cases, as in other commitment cases, is clear and
convincing evidence. 616 The court of appeals has held that this burden satisfies due process. 617
Clear and convincing evidence is more than a preponderance but less than proof beyond a
reasonable doubt. 618 The standard is satisfied when “the truth of the facts sought to be admitted
is ‘highly probable.’” 619 The court of appeals has said that clear and convincing evidence is
evidence that is “unequivocal and uncontradicted and intrinsically probably and credible.” 620
This does not mean, however, that the testimony on each point must be undisputed; “A trial court
must still resolve inconsistencies in testimony by weighing the credibility of the testimony and
evidence presented.” 621
Because of the higher standard of proof in criminal cases, an act may be proved in a civil
commitment case even though the person has been acquitted of the act in a criminal
prosecution. 622
615
In re Domrose, No. A07-649, 2007 WL 2703154, at *4 (Minn. Ct. App. Sept. 18, 2007)
(unpublished).
616
Minn. Stat. § 253B.18, subd. 1 (2009).
617
See section V.C.2., below.
618
In re Peria, No. A06-1452, 2007 WL 235632, at *2 (Minn. Ct. App. Jan. 30, 2007)
(unpublished); In re Rustman, No. A06-266, 2006 WL 1738283, at *1 (Minn. Ct. App. 2006)
(unpublished); In re Hamann, No. A06-3, 2006 WL 1390590, at *1 (Minn. Ct. App. 2006)
(unpublished).
619
In re Braylock, No. A06-1053, 2006 WL 3409875, at *2 n.1 (Minn. Ct. App. Nov. 28, 2006)
(unpublished).
620
In re Rustman, No. A06-266, 2006 WL 1738283, at *1 (Minn. Ct. App. 2006) (unpublished)
(citing Deli v Univ. of Minn., 511 N.W.2d 46, 52 (Minn. Ct. App. 1994)); In re Hamann,
No. A06-3, 2006 WL 1390590, at *1 (Minn. Ct. App. 2006) (unpublished) (same).
621
In re Sims, No. A09-1312, 2009 WL 4911063, at *7 (Minn. Ct. App. Dec. 22, 2009)
(unpublished), review denied (Minn. Feb. 16, 2010) (noting Deli standard, but holding that clear
and convincing standard met despite disagreement between experts); In re Domrose,
No. A07-649, 2007 WL 2703154, at *2 (Minn. Ct. App. Sept. 18, 2007) (unpublished) (same); In
re Braylock, No. A06-1053, 2006 WL 3409875, at *2 n.1 (Minn. Ct. App. Nov. 28, 2006)
(unpublished) (same).
622
In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (involving mentally ill and dangerous
commitment).
83

The trial court may properly credit a victim’s earlier statement that the victim later
recanted, and even recants at the time of the commitment trial, if the evidence shows that the
recantation is not credible. 623
T. Findings.
The statutory requirements for specificity of findings applicable to other types of
commitments do not apply to SPP and SDP commitments. 624 This includes findings relating to
less restrictive alternatives. 625
The court of appeals has held that a description in a pre-sentence investigation report of
an uncharged crime is not, without more, sufficient to support a finding that the acts occurred. 626
Verbatim adoption of one party’s proposed findings is not error where the findings were
supported by the evidence. 627 The appellate court reviews such findings to assure that they are
supported by the record and that the trial court conscientiously considered all of the issues. 628
When the district court has adopted proposed findings verbatim, the appellate court must conduct
a “careful and searching review of the record.” 629 The appellate court must scrupulously review
the findings, whether drafted by a party or the trial court, to assure that the are detailed and
623
In re Jackson, 658 N.W.2d 219, 224-25 (Minn. Ct. App. 2003); In re Allan, No. A09-1607,
2010 WL 608028 at *3-4 (Minn. Ct. App. Feb. 23, 2010) (unpublished).
624
Linehan III, 557 N.W.2d at 190; In re Prather, 1998 WL 887539, at *2 (Minn. Ct. App. 1998)
(unpublished), remanded (Minn. Feb. 24, 1999), appeal after remand, No. C0-00-987, 2000 WL
1778321 (Minn. Ct. App. Nov. 21, 2000) (unpublished); In re McClure, No. C2-97-2244, 1998
WL 436878, at *3 (Minn. Ct. App. Sept. 30, 1998) (unpublished).
625
Ayers, 570 N.W.2d at 25.
626
In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)
(unpublished).
627
In re Fernandes, No. A06-506, 2006 WL 2947642, at *2 (Minn. Ct. App. Oct. 17, 2006)
(unpublished); In re Foley, No. A04-2340, 2005 WL 1154334, at *7 (Minn. Ct. App. May 17,
2005) (unpublished); In re Jones, No. C2-01-1293, 2001 WL 1491248, at *1-2 (Minn. Ct. App.
Nov. 27, 2001) (unpublished) (trial court stated that it “carefully reviewed the proposed
findings” submitted by the county and concluded that they “accurately, completely, and properly
describe the evidence presented at trial”); In re Ivey, No. A04-1909, 2005 WL 832329, at *4
(Minn. Ct. App. Apr. 12, 2005) (unpublished) (holding that “verbatim adoption of a party’s
proposed findings and conclusions, while not encouraged, is not reversible error”); In re Swan,
No. CX-97-2041, 1998 WL 217190 (Minn. Ct. App. May 5, 1998) (unpublished).
628
In re Scott, No. A09-0366, 2009 WL 2499266, at *6 (Minn. Ct. App. Aug. 18, 2009)
(unpublished); In re Meyer, No. A07-460, 2007 WL 2770186, at *5 (Minn. Ct. App. Sept. 25,
2007) (unpublished) (noting that trial court added a memorandum discussing many of disputed
facts); In re Kirckof, No. A06-956, 2006 WL 3007995, at *7-8 (Minn. Ct. App. Oct. 24, 2006)
(unpublished) (review showed that trial court revised some of the proposed findings).
629
In re Domrose, No. A07-649, 2007 WL 2703154, at *3 (Minn. Ct. App. Sept. 18, 2007)
(unpublished).
84

specific enough to warrant meaningful review. 630 A party may not challenge the court’s
adoption of certain findings where he has stipulated to their adoption. 631 And the party’s
argument regarding verbatim adoption of proposed findings fails where he fails to identify
findings that he claims are incorrect. 632
U. Stipulation For Commitment.
Often, in the face of strong evidence, a proposed patient will stipulate to commitment.
Such a stipulation is valid and an attempt by a committed person to have the stipulation
invalidated will be evaluated according to the standards for vacating a stipulation in a civil
matter, rather than the standards applied to withdrawn guilty pleas in criminal cases. 633 An
agreement for civil commitment is not subject to the factual-basis requirement of a criminal
Alford plea. 634
A stipulation may be vacated if it is improvidently made and ought not to stand in equity
and good conscience; examples include a stipulation based on fraud or duress that prejudices the
party. 635
Whether to vacate a stipulation rests largely in the discretion of the trial court, and will be
reversed only for abuse of discretion. 636 A reviewing court gives deference to the district court’s
findings that the stipulation was entered knowingly and intelligently. 637 Where the person has
freely stipulated to findings and to commitment, he may not then challenge the findings to which
630 In re Jennings, No. A05-1920, 2006 WL 696536, at *4-5 (Minn. Ct. App. Mar. 21, 2006)
(unpublished); In re Williams, No. A05-1271, 2005 WL 3470517, at *3 (Minn. Ct. App. Dec. 20,
2005) (unpublished).
631 In re White, No. A05-231, 2005 WL 1804919, at *3 (Minn. Ct. App. Aug. 2, 2005)
(unpublished).
632 In re Fernandes, No. A06-506, 2006 WL 2947642, at *2 (Minn. Ct. App. Oct. 17, 2006)
(unpublished).
633 In re Rannow, 749 N.W.2d 393, 393 (Minn. Ct. App. May 20, 2008) (applying principles
from SDP case law to stipulation for mentally ill and dangerous commitment); In re Hill,
No. A05-2438, 2006 WL 1390587, at *3 (Minn. Ct. App. May 23, 2006) (unpublished); In re
Sargent, No. A04-1767, 2005 WL 406345, at *2-3 (Minn. Ct. App. Feb. 22, 2005) (unpublished).
634 Rannow, 749 N.W.2d at 399.
635 Id. at 393; In re Harju, No. A09-1619, 2010 WL 431593, at *2 (Minn. Ct. App. Feb. 9, 2010)
(unpublished), review denied (Minn. Apr. 20, 2010); In re Hill, No. A05-2438, 2006 WL
1390587, at *3 (Minn. Ct. App. May 23, 2006) (unpublished); In re Sargent, No. A04-1767,
2005 WL 406345, at *2-3 (Minn. Ct. App. Feb. 22, 2005) (unpublished).
636 Rannow, 749 N.W.2d at 393; In re Harju, No. A09-1619, 2010 WL 431593, at *2 (Minn. Ct.
App. Feb. 9, 2010) (unpublished), review denied (Minn. Apr. 20, 2010); In re Hill,
No. A05-2438, 2006 WL 1390587, at *3 (Minn. Ct. App. May 23, 2006) (unpublished).
637 In re Hopson, No. A06-976, 2006 WL 3199160, at *3 (Minn. Ct. App. Nov. 7, 2006)
(unpublished).
85

he has agreed. 638 Being committed only as an SDP, rather than also as an SPP, provides a
rational basis for stipulating to commitment. 639
V. Treatment Report and Review Hearing.
Under Minn. Stat. § 253B.18, subd. 2 (2009), the facility to which the person is initially
committed must evaluate the person and submit a “treatment report” to the trial court within 60
days after the initial commitment. However, if the person is in prison at the time of the initial
commitment, then the treatment report must be filed within 60 days after the person is released
from prison and transferred to the Minnesota Sex Offender Program. 640 If the patient is
committed as both SPP and SDP, but the treatment report neglects to address the SPP criteria,
this does not preclude the trial court from indeterminately committing the person as SPP, in
addition to SDP. However, the treatment facility may be required to submit a supplemental
report and the person must then be provided an opportunity for a hearing addressing the
supplemented report. 641
The court of appeals apparently rejected a committed person’s argument that the report
from the state treatment program was “merely an endorsement of the trial court’s order,” saying
that “the statute on its face only requires that a treatment report is provided to the district
court.” 642 Likewise, the appellate court rejected the argument that the treatment report did not
specify an “individualized treatment plan,” saying that the statute did not require it. 643
The trial court must hold a review hearing after receiving the treatment report from the
facility to which the person was committed. 644 The supreme court has rejected the argument that
the proposed patient must be given the opportunity to introduce any evidence he wishes relating
to the commitment requirements, concluding that reopening the matter for a plenary review of
the recent commitment decision would generally be unproductive. 645 The court delineated the
scope of the review hearing:
638
In re White, No. A05-231, 2005 WL 1804919, at *4 (Minn. Ct. App. Aug. 2, 2005)
(unpublished).
639
In re Harju, No. A09-1619, 2010 WL 431593, at *3 (Minn. Ct. App. Feb. 9, 2010)
(unpublished), review denied (Minn. Apr. 20, 2010).
640
Minn. Stat. § 253B.18, subd. 2(a) (2009)
641
In re Fisher, No. A05-579, 2005 WL 2209079, at *12-14 (Minn. Ct. App. Sept. 13, 2005)
(unpublished).
642
In re Pyron, No. A08-638, 2008 WL 4007433, at *4 (Minn. Ct. App. Sept.2, 2008)
(unpublished); see also In re Parks, No. A09-126, 2009 WL 2226792, at *7 (Minn. Ct. App.
July 28, 2009) (unpublished), review denied (Minn. Oct. 20, 2009).
643
Id. at *5. Note, however, that Commit. & Treatment Act R. 23(d)(6) does require that the
treatment report provide nine specified pieces of information, including “the respondent’s
individual treatment plan.”
644
Minn. Stat. § 253B.18, subd. 2 (2009).
645
In re Linehan (Linehan II), 557 N.W.2d 167, 171 (Minn. 1996), vacated and remanded, 522
U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).
86

[E]vidence considered at the review hearing is properly limited to: (1) the
statutorily required treatment report; (2) evidence of changes in the patient’s
condition since the initial commitment hearing; and (3) such other evidence as in
the district court’s discretion enhances its assessment of whether the patient
continues to meet statutory criteria for commitment. 646
The district court could properly decline to consider additional evidence from the proposed
patient about prediction of dangerousness. 647 “The focus of the 60-day review hearing is to
determine whether there is ‘evidence of changes in the patient’s condition since the initial
commitment hearing.’ The goal is not to reassess whether the underlying standards for
commitment are met.” 648 Where the patient retains additional experts at the review hearing who
dispute the initial decision to commit the patient and whose testimony “is merely an attack on the
opinions offered by the court-appointed examiners at the initial trial,” their testimony is
“irrelevant and outside the scope of review of the 60-day hearing.” 649 Because the issue is
whether the patient’s condition has changed, the district court need not make new findings as to
whether he meets the standards for commitment. 650
Although the civil commitment court rules require that the treatment facility’s review
report address nine specified items, 651 these are not the criteria the court must consider in
deciding whether to indeterminately commitment the person. Instead, the standard is whether
the person is an SDP (or SPP) under the statute. 652
646
Id., see also In re Bartholomew, No. A08-0136, 2008 WL 2732303, at *2-3 (Minn. Ct. App.
July 15, 2008) (unpublished) (emphasizing that issue on appeal from indeterminate commitment
is whether person “continued” to meet commitment standards, and that record showed no
change); In re Daniels, No. A03-623, 2003 WL 22707418, at *2-3 (Minn. Ct. App. Nov. 18,
2003) (unpublished) (holding that purpose of final commitment hearing is to consider views of
treatment facility and changes in person’s condition, court states same standard is applied to final
commitment as initial commitment and rejects argument that statute provides no standard for
review hearing); In re Kubec, No. C9-98-520, 1998 WL 566827, at *1 (Minn. Ct. App. Sept. 8,
1998) (unpublished).
647
Linehan II, 557 N.W.2d at 171.
648
In re Pyron, No. A08-638, 2008 WL 4007433, at *4 (Minn. Ct. App. Sept.2, 2008)
(unpublished), citing Linehan II; see also In re Parks, No. A09-126, 2009 WL 2226792, at *7
(Minn. Ct. App. July 28, 2009), review denied (Minn. Oct. 20, 2009) (unpublished); In re
Warbington, No. A08-1058, 2009 WL 511799, at *8 (Minn. Ct. App. March 3, 2009), review
denied (Minn. May 19, 2009) (unpublished).
649
In re Nelson, No. A06-2299, 2007 WL 1747175, at *3-4 (Minn. Ct. App. Jun. 19, 2007)
(unpublished); see also In re Lentz, No. A07-670, 2007 WL 2770417, at *6 (Minn. Ct. App.
Sept. 25, 2007) (unpublished).
650
In re Anderson, No. C8-98-976, 1998 WL 727734, at *1 (Minn. Ct. App. Oct. 20, 1998)
(unpublished).
651
Commit. & Treatment Act R. 23(d).
652
In re Harju, No. A09-1619, 2010 WL 431593, at *5 (Minn. Ct. App. Feb. 9, 2010)
(unpublished), review denied (Minn. Apr. 20, 2010).
87

Where, before the review hearing, the committed person is returned to prison for an
extended period, this is not a material change in the person’s commitment that renders
indeterminate commitment inappropriate. 653 The statute is intended to consider changes in the
person’s psychological condition, not his incarceration status. 654 Of course, not every change in
the person’s condition will render indeterminate commitment inappropriate; it is up to the trial
court to consider whether the change obviates the need for commitment. 655
The court of appeals has held that the review hearing is the wrong setting to raise an issue
regarding whether the patient is receiving proper treatment at the Minnesota Sex Offender
Program. 656 Moreover, an initial psychological and social history assessment and the
opportunity to participate in education and recreation therapy are adequate to meet any
constitutional treatment requirement in the period between the initial commitment and the review
hearing. 657
The district court may deny the patient’s request for a new second examiner for the
review hearing. 658 This is true even though the commitment rules allow the patient to have the
court appoint an examiner of the patient’s choice for the review hearing. 659 Apparently this
means that the court need not allow the patient to choose a different examiner than the one
selected by the patient for the initial hearing.
Under the statute, the review hearing must be held, at latest, within 90 days after the
initial commitment. 660 However, where the person is civilly committed while serving a prison
sentence, the time for holding a review hearing does not begin to run until the person is
transferred to the treatment facility. 661
A review hearing may be continued only with the agreement of both parties, and then for
no more than a year. 662 The proposed patient cannot insist that the review hearing be continued
653
In re Hopson, No. A06-976, 2006 WL 3199160, at *5 (Minn. Ct. App. Nov. 7, 2006)
(unpublished) (patient returned to prison for 10 years).
654
Id.
655
In re Braylock, No. A06-1053, 2006 WL 3409875, at *5 (Minn. Ct. App. Nov. 28, 2006)
(unpublished) (committed person had begun to admit his offenses).
656
In re Barber, No. A04-2089, 2005 WL 758027, at *4-5 (Minn. Ct. App. Apr. 5, 2005)
(unpublished).
657
Id. at *6.
658
In re Hatton, No. A08-0648, 2008 WL 4301816, at *4 (Minn. Ct. App. Sept. 23, 2008)
(unpublished); In re Anderson, No. C8-98-976, 1998 WL 727734, at *3 (Minn. Ct. App. Oct. 20,
1998) (unpublished).
659
Minn. R. Civ. Commit. 23(c) (2006). At the time of the Anderson decision cited in the
previous note, an earlier version of the rule contained an identical provision. See Minn. R. Civ.
Commit. 12.03 (1998).
660
Minn. Stat. § 253B.18, subd. 2 (2009).
661
Minn. Stat. § 253B.18, subd. 2(a) (2009); In re Martenies, No. CX-90-1545, 1990 WL
152685 (Minn. Ct. App. Dec. 18, 1990) (unpublished).
662
Minn. Stat. § 253B.18, subd. 2(b)(2) (2009).
88

in order to allow the proposed patient more time to demonstrate progress or to demonstrate his
amenability to treatment and avoid indeterminate commitment. 663 The reason for this is to avoid
having a delayed review hearing become a substitute for the statutory discharge procedure. 664
“The underlying policy appears to be that the district court must make its final determination
fairly quickly, at which point the treating experts take over and may keep reviewing the person’s
progress until he is ready for a reduction in custody” through the special review board/judicial
appeal panel process. 665 The review hearing is intended to be a “procedural safeguard to catch
any mistakes in the initial hearing”; the Legislature did not expect that a person initially
committed as an SPP or SDP may improve enough before the review hearing so that
commitment is not necessary. 666
W. Appeal.
The commitment statute encourages a single appeal in SPP/SDP cases by allowing the
patient to wait until after the indeterminate commitment and then appeal both the initial and
indeterminate commitment orders. 667 Thus, the patient, when he appeals both orders after the
indeterminate commitment, may raise issues from the initial commitment. 668
In commitment cases, the patient need not raise evidentiary issues in a motion for a new
trial in order to preserve them for appeal. 669
In general, pretrial orders, including pretrial court hold orders, are interlocutory and
nonappealable. 670 However, issuance of a pretrial hold order may be raised before trial pursuant
to “discretionary review” under Minn. R. Civ. App. P. 105.01. 671 An order denying a motion
to dismiss is not immediately appealable unless it is based on lack of subject matter jurisdiction
663
In re Harju, No. A09-1619, 2010 WL 431593, at *3-5 (Minn. Ct. App. Feb. 9, 2010), review
denied (Minn. Apr. 20, 2010) (unpublished); In re Cox, No. A08-0910, 2009 WL 113397, at *2
(Minn. Ct. App. Jan. 20, 2009), review denied (Minn. Mar. 31, 2009) (unpublished); In re Reb,
No. C5-97-827, 1997 WL 470154 (Minn. Ct. App. Aug. 19, 1997) (unpublished).
664
In re Harju, No. A09-1619, 2010 WL 431593, at *3-5 (Minn. Ct. App. Feb. 9, 2010), review
denied (Minn. Apr. 20, 2010) (unpublished); In re Reb, No. C5-97-827, 1997 WL 470154 (Minn.
Ct. App. Aug. 19, 1997) (unpublished).
665
In re Harju, No. A09-1619, 2010 WL 431593, at *4 (Minn. Ct. App. Feb. 9, 2010), review
denied (Minn. Apr. 20, 2010) (unpublished).
666
Id.
667
Minn. Stat. § 253B.23, subd. 7 (2009); In re Johnson, No. C5-98-1965, 1999 WL 109608, at
*2 (Minn. Ct. App. Mar. 2, 1999) (unpublished).
668
In re Johnson, 1999 WL 109608, at *2.
669
Irwin, 529 N.W.2d at 371.
670
In re Anderson, No. C2-97-199, 1997 WL 177698 (Minn. Ct. App. Apr. 15, 1997)
(unpublished).
671
In re Daniels, No. A03-623, 2003 WL 22707418, at *4 (Minn. Ct. App. Nov. 18, 2003)
(unpublished).
89

or is certified by the trial court as important and doubtful. 672 But the order may be reviewed in
an appeal from the subsequent order for commitment. 673
The appellate review standard for findings of fact is clear: findings will be affirmed if
they are supported by the record as a whole and are not clearly erroneous. 674 The appellate court
will not reweigh the evidence. 675 Based upon a review of the entire record, the appellate court
will reverse only if “left with a firm and definite impression that a mistake has been made.” 676
“Deference is given to the district court’s opportunity to judge the credibility of witnesses.” 677
The “clearly erroneous” determination must also take into account the clear-and-convincingevidence
standard, i.e., did the trial court clearly err in finding that the facts were proven by
clear-and-convincing evidence? 678 “But a finding of fact that is controlled or influenced by
an error of law will be set aside.” 679
It does not violate the federal constitution for the state appellate court to determine issues
in the case, even factual issues. 680
Regarding disagreements in expert testimony, the trial court’s evaluation of credibility is
particularly important. 681
672
In re Giem, 727 N.W.2d 198, 200 (Minn. Ct. App. 2007).
673
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *6 (Minn. Ct. App. Aug. 5, 2008)
(unpublished), review denied (Minn. Oct. 21, 2008).
674
Linehan III, 557 N.W.2d at 171; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re
Stone, 711 N.W.2d 831, 836 (Minn. Ct. App. 2006).
675
Linehan III, 557 N.W.2d at 189.
676
In re Knutson, No. A05-1204, 2005 WL 3159930, at *2 (Minn. Ct. App. 2005) (unpublished)
(quoting Roy Matson Truck Lines, Inc., v. Michelin Tire Corp., 277 N.W.2d 361, 361-62 (Minn.
1979)).
677
In re Ramey, 648 N.W.2d 260, 269 (Minn. Ct. App. 2002) (citing In re Knops, 536 N.W.2d
616, 620 (Minn.1995)).
678
In re McClure, No. C2-97-2274, 1998 WL 436878, at *2 (Minn. Ct. App. Aug. 4, 1998)
(unpublished) (citing In re Leebl, 352 N.W.2d 135, 137 (Minn. Ct. App. 1984)).
679
Stone, 711 N.W.2d at 836.
680
Martin v. Mooney, No. 06-1605 DSD/RLE, 2007 WL 1306409, at *15-16 (D. Minn. May 3,
2007) (rejecting argument based on Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979)).
681
Linehan III, 557 N.W.2d at 190; In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986); In re
Lentz, No. A07-670, 2007 WL 2770417, at *3, 5 (Minn. Ct. App. Sept. 25, 2007) (unpublished)
(saying, “It was the district court’s prerogative to credit the testimony of Dr. Marshall over
Dr. Meyer”); In re Domrose, No. A07-649, 2007 WL 2703154, at *2 (Minn. Ct. App. Sept. 18,
2007) (unpublished) (saying, “But it is the district court’s role to evaluate the testimony of
experts,” and upholding lower court’s determination of one examiner’s testimony “to not be
credible and persuasive on this issue”); In re Brown, No. A07-593, 2007 WL 2367601, at *2
(Minn. Ct. App. Aug. 21, 2007) (unpublished) (deferring to district court’s assessment that
examiner’s testimony regarding less-restrictive alternatives lacked credibility); In re Black,
No. A06-2262, 2007 WL 1470592, at *5 (Minn. Ct. App. May 22, 2007) (unpublished) (saying,
90

“The decision of whether to admit or exclude evidence is within the district court’s
discretion and will be reversed only if the court has clearly abused its discretion.” 682 A
commitment will not be reversed based upon the erroneous admission of evidence unless the
ruling is shown to be prejudicial. 683 An erroneous ruling will not result in reversal where
properly admitted evidence supports the commitment. 684
However, the standard of review for the determination of whether the proposed patient
satisfies the commitment requirements is somewhat confusing. In Linehan I, the supreme
court said:
The question before us is whether the record supports, by clear and convincing
evidence, the trial court’s conclusion that appellant meets the [utter-lack-ofpower-to-control
and likelihood-of-reoffense] elements. This is a question of law
which we review de novo. 685
However, in Linehan III, the supreme court said:
Linehan also argues that certain findings of fact were clearly erroneous. On
appeal, we will not weigh the evidence. We will determine if the evidence as a
whole presents substantial support for the district court’s conclusions. Johnson v.
Noot, 323 N.W.2d 724, 728 (Minn. 1982). 686
The supreme court later explained that the weight to be given to the various Linehan I likelihood
factors “was largely for the district court and its assessment of expert testimony.” 687 Contrary to
Linehan I’s statement that the issue of whether the person meets the likelihood standard is a legal
issue reviewable de novo, it appears that the supreme court in Linehan III stated that this
determination was “largely for the trial court,” and thus reviewed under a more deferential
standard of “substantial support” for the determination.
Since Linehan III, the court of appeals has applied varying standards. In one case, for
example, the court applied a de novo review standard in overturning the trial court’s decisions
that the evidence had not shown an inability to adequately control behavior and that certain
“The district court was in a position to judge the credibility of the three experts and, in its
discretion, to credit the opinions of two of the experts over the third”).
682
In re Ramey, 648 N.W.2d 260, 270 (Minn. Ct. App. 2002).
683
In re Fisher, No. A05-579, 2005 WL 2209079, at *11 (Minn. Ct. App. Sept. 13, 2005)
(unpublished).
684
In re Bieganowski, 520 N.W.2d 525, 529 (Minn. Ct. App. 1994).
685
Linehan I, 518 N.W.2d at 613. The court of appeal has often said that the question of whether
the person satisfies the statutory standard is a question of law. See, e.g., In re Stone, 711 N.W.2d
831, 836 (Minn. Ct. App. 2006).
686
Linehan III, 557 N.W.2d at 189.
687 Id. at 190.
91

conduct was not “harmful sexual conduct” under the SDP statute. 688 And in another case, the
appellate court considered a record where there were differing expert opinions on whether a
course of sexual misconduct was “habitual.” The court said, “While experts can offer opinions,
the district court ultimately decides whether the standards are met as a matter of law.” 689
But in yet another case, the court seemingly applied a different standard:
[W]here expert testimony provides conflicting evidence of a psychopathic
personality [specifically, the utter lack of power to control requirement], the trial
court must resolve that question of fact. The record contains clear and convincing
evidence that appellant lacks the ability to control his sexual impulses. 690
Moreover, despite the supreme court’s holding in Linehan I that the issue of whether the
proposed patient satisfies the commitment requirements is a question of law, after Linehan I the
court of appeals reversed a district court’s conclusion that the appellant had an utter lack of
power to control, apparently because all of the experts who had addressed that issue had
concluded that the person did not meet the requirement. 691 That decision is difficult to reconcile
with an earlier supreme court decision where the two examiners had both found that the
proposed patient met the commitment requirements for commitment as a PP. The trial judge
disagreed, but nonetheless committed the patient, believing that he was “outvoted” and therefore
bound by the decisions of the two examiners. The supreme court overturned the commitment,
saying:
We think it clear that the legislature intended the probate judge to have the
exclusive authority to determine whether the patient was a psychopathic
personality and that the examining doctors functioned only as expert witnesses
rather than as coequal members of a judicial tribunal. 692
In a more recent case, the court of appeals upheld a district court’s determination that the
proposed patient had an “utter lack of power to control,” even where both examiners concluded
the person did not meet that requirement. 693 But in a different case, the appellate court
688
In re Martin, 661 N.W.2d 632, 638 (Minn. Ct. App. 2003); see also In re Gleason, No. C2-97-
2194, 1998 WL 218223 (Minn. Ct. App. May 5, 1998) (unpublished); In re Linehan, 544
N.W.2d 308, 312 (Minn. Ct. App. 1996), aff’d, 557 N.W.2d 171, 185 (Minn. 1996), vacated and
remanded, 522 U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).
689
In re Larkin, No. C9-99-382, 1999 WL 508655, at *1 (Minn. Ct. App. July 20, 1999)
(unpublished) (emphasis added).
690
In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *8 (Minn. Ct. App. Dec. 15, 1999)
(unpublished) (emphasis added, citations omitted).
691
In re Mentzos, No. C3-95-2331, 1996 WL 81721, at *4-5 (Minn. Ct. App. Feb. 27, 1996)
(unpublished); but see In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn. Ct. App.
Aug. 28, 2007) (unpublished).
692
Keiser v. Sheppard, 194 N.W.2d 286, 288 (Minn. 1972).
693
In re Luhmann, No. A07-912, 2007 WL 2417341, at *4-5 (Minn. Ct. App. Aug. 28, 2007)
(unpublished).
92

overturned such a district court decision where the court failed to adequately explain why it
rejected the examiners’ opinions. 694
Both personal and subject matter jurisdiction are questions of law, reviewed de
novo. 695
The court of appeals will not reverse the commitment on technical procedural grounds,
where no prejudice has been shown. 696 The appellate court can disregard some incidents of
sexual misconduct found by the trial court, but nonetheless determine that the remaining
incidents are sufficient to satisfy the “course” requirement. 697
Where a legal issue has been decided in a previous appeal in the same case, “under the
law-of-the-case doctrine, courts do not typically review prior decisions as a matter of policy, but
may do so if there has been a change in law or a change in evidence that makes reconsideration
necessary.” 698 Where the appellate court remands a case on issues relating only to the review
hearing and indeterminate commitment under Minn. Stat. § 253B.18, subd. 2, the person may
not, in a subsequent appeal, raise issues relating to the initial commitment. 699
The court of appeals has hesitated to apply the law-of-the-case doctrine to the initial
commitment determination when considering an appeal from the later, indeterminate,
commitment. 700 But the court rejected arguments that were the same as ones made in the appeal
of the initial commitment. 701
Failure to raise an issue in the district court, even a constitutional issue, constitutes a
waiver of that issue on appeal. 702 However, the special nature of commitment and the
694 In re Buckner, No. A09-1420, 2009 WL 4574169, at *2 (Minn. Ct. App. Dec. 8, 2009)
(unpublished)
695 In re Lonergan, No. A08-0394, 2008 WL 2967088, at *4 (Minn. Ct. App. Aug. 5, 2008),
review denied (Minn. Oct. 21, 2008) (unpublished).
696 In re Castonguay, No. C1-99-1025, 1999 WL 1216127, at *2 (Minn. Ct. App. Dec. 15, 1999)
(unpublished); In re Schultz, No. CX-99-1296, 1999 WL 1100941, at *2 (Minn. Ct. App. Nov.
30, 1999) (unpublished).
697 In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)
(unpublished).
698
In re Martin, No. A04-1634, 2005 WL 354088, at *2, 5 (Minn. Ct. App. Feb. 15, 2005)
(unpublished) (refusing to re-examine issue).
699
In re Fisher, No. A05-579, 2005 WL 2209079, at *2 (Minn. Ct. App. Sept. 13, 2005)
(unpublished).
700
In re Bartholomew, No. A08-0136, 2008 WL 2732303, at *2 (Minn. Ct. App. July 15, 2008)
(unpublished).
701 Id.
702 In re Tolbert, No. A08-0395, 2008 WL 3898457, at *5 (Minn. Ct. App. Aug. 26, 2008)
(unpublished); In re Fageroos, No. A06-1947, 2007 WL 509748, at *5 (Minn. Ct. App. Feb. 20,
2007) (unpublished); In re Hoium, No. C2-98-469, 1998 WL 531814, at *5 (Minn. Ct. App.
Aug. 25, 1998) (unpublished).
93

deprivation of liberty involved give the appellate court broader-than-normal discretion to
consider issues not raised in the trial court. 703 The appellant has also waived the issue where he
did raise it in the district court, but not until after the commitment hearing and decision. 704
Indeed, the court of appeals has held in an unpublished decision that, under Minn. R. Civ. P. 12,
the commitment respondent must raise any defenses to the commitment petition, including
arguments that the commitment is unconstitutional, within 20 days after service of the
commitment petition or those defenses are waived. 705
Where the appellant fails to adequately argue or brief an issue on appeal, it is
waived. 706 It is not sufficient that the appellant refers the appellate court to arguments contained
in the trial court transcript. 707 But even where the issue is waived, the court may consider it “in
the interest of justice.” 708
Although the appellate rules require a party challenging the constitutionality of a statute
to give notice to the Attorney General, the rule is not an absolute bar to considering the
constitutional issue. 709
The appellate record in the case consists of the papers filed in the district court, the
exhibits and the transcript. Where a party’s appellate brief refers to matters outside the record,
those portions of the brief will be stricken. 710
703 In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at *5 (Minn. Ct. App. June 20,
2000) (unpublished).
704 In re Lunsford, No. A09-0335, 2009 WL 2747761, at *2 (Minn. Ct. App. Sept. 1, 2009)
(unpublished).
705 Id.
706 In re Robb, 622 N.W.2d 564, 574 (Minn. Ct. App. 2001); Irwin, 529 N.W.2d at 373; In re
Harrison, No. A07-1181, 2007 WL 4305377, at *6 (Minn. Ct. App. Dec. 11, 2007)
(unpublished); In re Mosby, No. A07-755, 2007 WL 2781806, at *4 (Minn. Ct. App. Sept. 25,
2007) (unpublished); In re Semler, No. A06-2213, 2007 WL 969081, at *5 (Minn. Ct. App. Apr.
3, 2007) (unpublished); In re Hill, No. A05-2438, 2006 WL 1390587, at *2 (Minn. Ct. App.
May 23, 2006) (unpublished); In re Sargent, No. A04-1767, 2005 WL 406345, at *4 (Minn. Ct.
App. Feb. 22, 2005) (unpublished); In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at
*6 (Minn. Ct. App. June 20, 2000) (unpublished).
707 Bieganowski, 520 N.W.2d at 529; In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381,
at *6 (Minn. Ct. App. June 20, 2000) (unpublished).
708 In re Harrison, No. A07-1181, 2007 WL 4305377, at *6 (Minn. Ct. App. Dec. 11, 2007)
(unpublished); In re Mosby, No. A07-755, 2007 WL 2781806, at *4 (Minn. Ct. App. Sept. 25,
2007) (unpublished).
709 In re Brewer, No. A08-2264, 2009 WL 1182608, at *1 (Minn. Ct. App. May 5, 2009)
(unpublished).
710 In re Hill, No. A05-2438, 2006 WL 1390587, at *2 (Minn. Ct. App. May 23, 2006)
(unpublished).
94

The court of appeals, of course, may not overturn supreme court precedent. 711
Where the committed person on appeal claims ineffective assistance of counsel, the
standard applied to determine adequacy of counsel is the same as that applied in criminal
cases. 712 The person must show that the attorney’s representation fell below an objective
standard of reasonableness and that there is a reasonable probability that the professional errors
changed the result of the case. 713 There is a strong presumption that representation was adequate
and the court does not second guess matters of trial strategy. 714 The attorney’s choice of
witnesses to call at trial 715 and refusal to assert on appeal all the issues the client wishes 716 fall
within the area of strategy that generally will not be reviewed. A commitment respondent has
the right to a court-appointed attorney, but not an unbridled right to have the court provide the
attorney the respondent would select. 717 The appellate court reviews such claims de novo. 718
X. State Habeas Corpus.
In addition to appeal, a committed person may use state habeas corpus to challenge his
commitment. 719 However, the grounds that may be raised in support of habeas are limited:
“[T]he only issues the district court will consider are constitutional and jurisdictional
711
In re Webber, No. A08-1903, 2009 WL 1119239, at *8 (Minn. Ct. App. Apr. 28, 2009),
review denied (Minn. June 30, 2009) (unpublished) (citing State v. Ward, 580 N.W.2d 67, 74
(Minn. Ct. App. 1998); In re Braylock, No. A06-1053, 2006 WL 3409875, at *4 (Minn. Ct. App.
Nov. 28, 2006) (unpublished) (same).
712
In re Eggert, No. A09-0502, 2009 WL 2928775 at *6 (Minn. Ct. App. Sept. 15, 2009)
(unpublished); In re Poole, Nos. C4-00-85, C8-00-171, 2000 WL 781381, at *8 (Minn. Ct. App.
June 20, 2000) (unpublished).
713
Id.
714
In re Brewer, No. A08-2264, 2009 WL 1182608, at *2 (Minn. Ct. App. May 5, 2009)
(unpublished); In re Larson, No. A08-1486, 2009 WL 1049171, at *7 (Minn. Ct. App. Apr. 21,
2009), review denied (Minn. June 30, 2009) (unpublished); In re Poole, Nos. C4-00-85, C8-00-
171, 2000 WL 781381, at *8 (Minn. Ct. App. June 20, 2000) (unpublished).
715
In re Lonergan, No. A08-0394, 2008 WL 2967088, at *5 (Minn. Ct. App. Aug. 5, 2008),
review denied (Minn. Oct. 21, 2008) (unpublished); In re Brinkman, No. A08-1077, 2008 WL
5058637, at *10 (Minn. Ct. App. Dec. 2, 2008) (unpublished).
716
In re Brewer, No. A08-2264, 2009 WL 1182608, at *3 (Minn. Ct. App. May 5, 2009)
(unpublished).
717
In re Lonergan, No. A08-0394, 2008 WL 2967088,at *5 (Minn. Ct. App. Aug. 5, 2008),
review denied (Minn. Oct. 21, 2008) (unpublished).
718
In re Eggert, No. A09-0502, 2009 WL 2928775 at *6 (Minn. Ct. App. Sept. 15, 2009)
(unpublished), review denied (Minn. Nov. 17, 2009).
719
Joelson v. O’Keefe, 594 N.W.2d 905, 908 (Minn. Ct. App. 1999) (citing State ex rel.
Anderson v. U.S. Veterans Hosp., 128 N.W.2d 710, 714 (Minn. 1964), and Minn. Stat.
§ 253B.23, subd. 5 (2009)).
95

challenges.” 720 Habeas may not be used to challenge mere errors or irregularities in the
proceedings of a competent court having jurisdiction. 721
(Federal habeas corpus is also available to raise federal constitutional or statutory
grounds to challenge confinement pursuant to state civil commitment. However, the substantive
and procedural limitations on federal habeas corpus will not be discussed here.)
The court in a state habeas case will not address issues that have been addressed in an
appeal from the commitment. 722 This bar applies even if the habeas petitioner raises different
arguments in support of the claim or seeks to elaborate on arguments previously raised. 723 The
bar applies where the person has made essentially the same arguments in seeking relief under the
statutory discharge procedures. 724
Similarly, if a claim has been raised and rejected in a previous habeas proceeding, but the
person did not appeal that decision, then the person is barred from raising the claim in a
subsequent state habeas proceeding. 725
The state appellate court has issued conflicting unpublished decisions regarding whether
a committed person may raise a claim in a habeas petition even though he failed to raise it in an
appeal from his commitment. In 2006, the court held that a habeas petitioner is generally barred
from raising a claim he could have raised in the direct appeal from his commitment. 726 The court
said the habeas petitioner could do so only in the exceptional circumstances recognized in the
criminal context for persons seeking post-conviction relief. 727 Similarly, in a 2008 decision, the
appellate court held that a habeas petitioner was barred from challenging whether his mental
disorder was sufficient to support commitment, where his appeal from his commitment had been
dismissed as untimely. The court said, “[W]e conclude that [the habeas petitioner’s] failure to
timely appeal his commitment is a procedural bar to his current argument.” 728 In two 2004
decisions, however, the appellate court declined to apply these limitations in the civil
720 Joelson, 594 N.W.2d at 908 (citing Anderson, 128 N.W.2d at 714).
721 In re Bailey, No. A05-1919, 2006 WL 9622, at *1 (Minn. Ct. App. Jan. 3, 2006)
(unpublished).
722
Joelson, 594 N.W.2d at 908, 909.
723
Duvall v. Doth, No. C2-96-1262, 1996 WL 636245, at *2 (Minn. Ct. App. Nov. 5, 1996)
(unpublished).
724
Kruger v Goodno, No. A05-2368, 2006 WL 620749, at *1-2 (Minn. Ct. App. Mar. 14, 2006)
(unpublished).
725 In re Bailey, No. A05-1919, 2006 WL 9622, at *2 (Minn. Ct. App. Jan. 3, 2006)
(unpublished); Larsen, 2004 WL 1049844, at *4.
726 Ivey v Mooney, No. A05-2087, 2006 WL 852152, at *2 (Minn. Ct. App. Apr. 4, 2006)
(unpublished).
727 Id. (citing Sessions v. State, 666 N.W.2d 718, 721 (Minn. 2003); Fox v. State, 474 N.W.2d
821, 822 (Minn. 1991); Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995)).
728 Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475, at *4 (Minn. Ct. App. July 1, 2008)
(unpublished), review denied (Minn. Sept. 23, 2008).
96

commitment habeas corpus context, allowing the habeas petitioner to raise issues he could have,
but did not, raise in his direct appeal. 729
A claim that the person’s current condition entitles him to release may not be raised by a
habeas petition, but instead must be raised through the statutory discharge procedure. 730
Where the facts are undisputed, the appellate court reviews the habeas claims de novo. 731
V. CONSTITUTIONAL CHALLENGES.
A. PP Law.
1. Pearson v. Probate Court—vagueness and equal protection.
The psychopathic personality law (now called the “sexual psychopathic personality” or
“SPP” law) was enacted in 1939. 732 That law defined the term “psychopathic personality” as
the existence in any person of such conditions of emotional instability, or
impulsiveness of behavior, or lack of customary standards of good judgment, or
failure to appreciate the consequences of personal acts, or a combination of any
such conditions, as to render such person irresponsible for personal conduct with
respect to sexual matters and thereby dangerous to other persons. 733
Almost immediately upon the enactment of the statute, in State ex rel. Pearson v. Probate
Court, 734 a proposed patient challenged the law as being unconstitutionally vague and on other
grounds. Responding to the vagueness challenge, the Minnesota Supreme Court gave the
statute a narrower interpretation, holding that the statute would apply only to
those persons who, by a habitual course of misconduct in sexual matters, have
evidenced an utter lack of power to control their sexual impulses and who, as a
result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the
objects of their uncontrolled and uncontrollable desire. 735
729 McDeid v. Mooney, No. A04-36, 2004 WL 728133, at *2 (Minn. Ct. App. Apr. 6, 2004)
(unpublished) (holding habeas petition not barred where person did not appeal); In re Larsen,
No. A03-1410, 2004 WL 1049844, at *4 (Minn. Ct. App. May 11, 2004) (unpublished) (stating
habeas petition not barred where person appealed, but did not raise issue).
730 Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475, at *5 (Minn. Ct. App. July 1, 2008)
(unpublished), review denied (Minn. Sept. 23, 2008).
731 Joelson, 594 N.W.2d at 908.
732 1939 Minn. Laws ch. 369, § 1.
733 Id.
734 State ex rel. Pearson v. Probate Court, 287 N.W. 297 (Minn. 1939), aff’d, 309 U.S. 270
(1940).
735 Id. at 302.
97

The court specifically stated that “it does not necessarily follow” that the PP disorder as
articulated by the court “must excuse [committed persons] from criminal conduct occurring in
the past.” 736
On appeal, the United States Supreme Court unanimously affirmed the constitutionality
of the statute. 737 The high Court held that, as construed by the Minnesota Supreme Court, the
statute was not unconstitutionally vague or indefinite. 738 Rejecting an equal protection
challenge (not mentioned in the state court’s opinion), the Supreme Court held that “the
legislature is free to recognize degrees of harm, and it may confine its restrictions to those
classes of cases where the need is deemed to be the clearest.” 739
2. In re Blodgett—substantive due process and equal protection.
After few commitments in the 1970s and 1980s, commitments under the PP statute
increased beginning in 1991, in response to several rape/murders committed mainly by persons
recently released from prison. 740 That year, the Department of Corrections began screening sex
offenders being released from prison and referring appropriate cases to county attorneys to
consider possible civil commitment under the PP law. 741
Several persons committed after 1991 challenged the constitutionality of the law in their
commitment cases. The first of these cases to reach the appellate courts was In re Blodgett. 742
Blodgett challenged the PP statute on vagueness, double jeopardy, substantive due process
and equal protection grounds, and claimed that his commitment violated the terms of his
prior criminal plea bargain. The court of appeals rejected all of these claims.
At Blodgett’s request, the Minnesota Supreme Court granted review of the substantive
due process and equal protection claims only. In a 4-3 decision, the court upheld the
constitutionality of the statute.
Considering Blodgett’s due process argument, the court held that the statute served a
compelling government interest—protecting the public from persons who have an uncontrollable
impulse to sexually assault. 743 The court rejected the argument that the PP statute is inconsistent
with the United States Supreme Court’s decision in Foucha v. Louisiana. 744 The state court
736
Id. at 303.
737
Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S. Ct. 523 (1940).
738
Id. at 274, 60 S. Ct. at 526.
739
Id. at 275, 60 S. Ct. at 526.
740
Office of the Legislative Auditor, Psychopathic Personality Commitment Law at 7-8 (1994).
741
Id. at 6, 8. Along with the increased emphasis on civil commitment, the Legislature also
increased criminal sentences for dangerous sex offenders in the 1989 legislative session, and
again in 1992. Id.
742
In re Blodgett, 490 N.W.2d 638 (Minn. Ct. App. 1992), aff’d, 510 N.W.2d 910 (Minn. 1994),
cert. denied, 513 U.S. 849 (1994).
743
Blodgett, 510 N.W.2d at 914.
744
Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780 (1992).
98

concluded that Foucha did not hold that typical mental illness is the only mental disorder that
may support civil commitment. 745 The court stated that the disorder identified in the PP statute
and Pearson “is an identifiable and documentable violent sexually deviant condition or
disorder.” 746
The supreme court recognized a disagreement among treatment professionals as to
whether the mental disorders exhibited by persons committed as PP are treatable, but noted that
there are many treatment programs for persons whose mental disorders render them sexually
dangerous. 747 The court observed, “[E]ven when treatment is problematic, and it often is, the
state’s interest in the safety of others is no less legitimate and compelling. So long as civil
commitment is programmed to provide treatment and periodic review, due process is
provided.” 748
For the same reasons, the court also rejected Blodgett’s equal protection claim, applying
“heightened” (i.e., intermediate) scrutiny analysis. 749
The court acknowledged that there are other approaches to dealing with mentally
disordered sexual predators. Such persons may constitutionally be given long or indeterminate
criminal sentences, instead of civil commitments. 750 However, the court concluded, “where there
are no definitive answers, it would seem a state legislature should be allowed, constitutionally, to
choose either or both alternatives for dealing with the sexual predator.” 751
Three justices dissented. They asserted that civil commitment of sexual predators
amounts to a “system of wholesale preventive detention, a concept foreign to our
jurisprudence.” 752
Blodgett petitioned for certiorari to the United States Supreme Court, which denied
review. 753
3. Validity of SPP law following Kansas v. Crane.
As explained in section V.B.5., below, in 2002 the U.S. Supreme Court held in Kansas v.
Crane that, to civilly commit a person as sexually dangerous, the Constitution requires that
“there must be proof of serious difficulty in controlling behavior.” 754 And, as explained in
745
Blodgett, 510 N.W.2d at 914-15.
746
Id. at 915.
747
Id. at 916 and n.12.
748
Id. at 916.
749
Id. at 917, citing State v. Russell, 477 N.W.2d 886 (Minn. 1991), for “heightened scrutiny”
standard.
750
Id.
751
Blodgett, 510 N.W.2d at 918.
752
Id. (Wahl dissenting).
753
513 U.S. 849 (1994).
754
Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002).
99

section V.B.6., after the Crane decision the courts have held that the SDP law’s “does not allow
them to adequately control” standard satisfies the Crane “serious difficulty in controlling”
requirement. In In re Benson in 2003, the state court of appeals drew the obvious conclusion that
the SPP law, with its “utter lack of power to control requirement,” “follows the requirements of
Crane even more closely than commitment under the SDP Act.” 755 Indeed, the high Court in
Crane expressly held that the Constitution does not require a showing of complete inability to
control. 756
4. Double Jeopardy Challenges.
In the court of appeals, Blodgett argued that his civil commitment constituted double
jeopardy, because it was based upon sexual acts for which he had been charged and convicted.
The court of appeals rejected Blodgett’s double jeopardy challenge and Blodgett did not raise the
issue in his appeal to the supreme court. 757 However, previously, in In re Enebak 758 in 1978, the
supreme court had held that a PP commitment was not criminal in nature, and therefore did not
constitute double jeopardy. After the Blodgett decision, in Call v. Gomez, 759 the supreme court
again considered and rejected a double jeopardy claim to a PP commitment, saying:
[O]ur decision in Blodgett clearly establishes that commitment under the
psychopathic personality statute is remedial and does not constitute double
jeopardy because it is for treatment purposes and is not for purposes of
preventative detention. 760
B. SDP Law.
1. Linehan III—substantive due process, equal protection, ex post facto
and double jeopardy.
As explained earlier, Dennis Linehan’s PP commitment was overturned by the state
supreme court in June 1994, based on the court’s holding that the county had not proved that
Linehan had an utter lack of power to control his sexual impulses. 761 After the SDP law was
enacted in August 1994, the county sought Linehan’s commitment under that law. The trial
court rejected Linehan’s claim that the law was unconstitutional and found that he met the
commitment criteria; the court of appeals affirmed. 762 The Minnesota Supreme Court then
755
In re Benson, No. C4-02-2004, 2003 WL 21500189, at *2 (Minn. Ct. App. July 1, 2003)
(unpublished).
756
Crane, 534 U.S. at 411-12, 122 S. Ct. at 870.
757
In re Blodgett, 490 N.W.2d at 646-47.
758
In re Enebak, 272 N.W.2d 27, 30 (Minn. 1978).
759
Call v. Gomez, 535 N.W.2d 312 (Minn. 1995), cert. denied, 519 U.S. 1094
(1997).
760
Id. at 319-20.
761
Linehan I, 518 N.W.2d 609.
762
In re Linehan, 544 N.W.2d 308 (Minn. Ct. App. 1996), aff’d, 557 N.W.2d 171, 185 (Minn.
1996), vacated and remanded, 522 U.S. 1011 (1997), aff’d as modified, 594 N.W.2d 867 (Minn.
1999).
100

granted review and, in December 1996, issued its decision upholding the constitutionality of the
statute and Linehan’s commitment by a 4-2 margin. 763
The court first addressed Linehan’s several substantive due process arguments, which
the court summarized:
Linehan’s primary contention is that his SDP Act commitment is not
narrowly drawn to serve the state’s interests because criminal sanctions are
available to deter him from and, if necessary, to punish him for any future harmful
sexual conduct. He asserts that he is presently competent to stand trial, able to
control his sexual impulses, not mentally ill, and that he has not been acquitted of
a crime on the basis of insanity. Linehan further contends that an antisocial
personality disorder is an insufficient basis for the commitment of dangerous
persons, and that an utter inability to control sexual impulses is required in order
to satisfy the narrow tailoring demand of strict scrutiny. 764
Rejecting these arguments, the court held that the utter-lack-of-power-to-control standard
of the PP law is not constitutionally required for commitment. The court observed that Blodgett
had held that civil commitment of persons who present a serious sexual danger is justified by the
state’s “compelling interest in protecting the public from sexual assault.” 765 The court then held
that the mental disorder element of the SDP law is even more narrowly tailored to serve the
State’s compelling interest than the standard of the PP law: “[T]he SDP Act is an attempt to
protect the public by treating sexual predators even more dangerous than those reached by the PP
Act—the mentally disordered who retain enough control to ‘plan, wait, and delay the indulgence
of their maladies until presented with a higher probability of success.’” 766 The court also
identified the purpose of the mental disorder requirement in the law: “[T]he mental disorder
requirement in the SDP Act serves the State’s interest in public safety by aiding the prediction of
dangerousness.” 767
The court rejected the reason advanced by Linehan to support his argument that utter lack
of power to control was constitutionally required. Linehan had argued that the utter-lack-ofpower-to-control
element was necessary to identify persons who lack criminal responsibility, and
are therefore “unreachable” by the criminal law. He asserted that a public-protection
commitment may be used only for persons who cannot be criminally punished for their acts. 768
The court rejected that argument, noting that it was expressly rejected in Pearson, the case that
763 In re Linehan (Linehan III), 557 N.W.2d 171, vacated and remanded, 522 U.S. 1011 (1997),
aff’d as modified, 594 N.W.2d 867 (Minn. 1999).
764 Id. at 180.
765
Id. at 181.
766
Id. at 182 (citation omitted).
767
Id.
768
Id. at 183.
101

first articulated the utter-lack-of-power-to-control standard. 769 The court also observed that
Linehan’s criminal responsibility justification was precluded by Blodgett. 770
In addition, the court rejected Linehan’s argument that an antisocial personality disorder
(or “APD”) is constitutionally insufficient to meet the mental disorder requirement for
commitment. The court said Linehan’s APD diagnosis did not simply characterize his past
antisocial conduct, but rather was based significantly on his disordered mental processes,
specifically his lack of empathy and remorse. 771 The Court noted that the purpose of the APD
diagnosis is “to identify an underlying mental disorder that accounts for the behavior,” and that it
did so in Linehan’s case. 772
The court also determined that Linehan’s equal protection claim lacked merit. Linehan
asserted that the SDP law unconstitutionally discriminates among persons who present a sexual
danger, based upon whether they have mental disorders. The court held that limiting the
application of the statute to persons with mental disorders serves the State’s interest in predicting
which persons will engage in harmful conduct, as well as the State’s interest in providing
treatment to sexual predators. 773
Finally, the court rejected Linehan’s ex post facto and double jeopardy claims, holding
that commitment under the law is not for punitive purposes. 774 The Court noted that Minnesota
has made a substantial commitment to treat persons committed under the act, both in statute and
by actual implementation of a treatment program. The Court said the “purpose and effect of the
SDP Act is therefore predominantly remedial, not punitive.” 775
2. U.S. Supreme Court decision in Kansas v. Hendricks—substantive due
process, ex post facto and double jeopardy.
Linehan petitioned for certiorari to the United States Supreme Court. In June 1997, while
Linehan’s certiorari petition was pending, the United States Supreme Court issued its decision in
Kansas v. Hendricks. 776 By a 5-4 margin, the Court upheld the commitment of Leroy Hendricks,
who had been civilly committed under Kansas’s “Sexually Violent Predator Act.” That Act
defined a “sexually violent predator” as
769
Linehan III, 557 N.W.2d at 183.
770
Id.
771
Id. at 185.
772
Id. (emphasis in original).
773
Id. at 186-87.
774
Id. at 187-88.
775
Linehan III, 557 N.W.2d at 188.
776
Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997).
102

any person who has been convicted of or charged with a sexually violent offense
and who suffers from a mental abnormality or personality disorder which makes
the person likely to engage in the predatory acts of sexual violence. 777
Hendricks was civilly committed at the completion of his prison term for sexually
molesting two young boys. He had a long history of sexually molesting children. During the
civil commitment proceedings, Hendricks told an examiner that he “[could]n’t control the urge”
to molest children. 778 The experts diagnosed Hendricks with the mental disorder of pedophilia.
A jury found that Hendricks met the requirements of the Kansas law, and he was civilly
committed to a state treatment program.
The Kansas Supreme Court reversed Hendricks’ commitment. That court held that the
commitment violated substantive due process because the law did not require, and Hendricks’
pedophilia did not constitute, a “mental illness.” 779 Because it concluded that Hendricks’
commitment violated substantive due process, the majority of the Kansas court did not reach his
double jeopardy and ex post facto arguments.
The United States Supreme Court, however, granted certiorari to review both the
substantive due process and the double jeopardy/ex post facto claims. The high Court rejected
all of these claims and reversed the Kansas Supreme Court’s decision.
The Supreme Court first addressed Hendricks’ claim that substantive due process
requires that civil commitment be based on a “mental illness” as that term may be defined by the
psychiatric profession. The Court said: “Contrary to Hendricks’ assertion, the term ‘mental
illness’ is devoid of any talismanic significance.” 780 Instead, the Court observed: “[W]e have
traditionally left to legislators the task of defining terms of a medical nature that have legal
significance.” 781 The Court held that the Kansas law’s mental disorder requirement satisfied the
requirements of substantive due process saying:
The precommitment requirement of a “mental abnormality” or “personality
disorder” is consistent with the requirements of . . . other statutes that we have
upheld in that it narrows the class of persons eligible for commitment to those
who are unable to control their dangerousness. 782
The Court also considered Hendricks’ double jeopardy and ex post facto arguments.
“As a threshold matter,” the Court said, “commitment under the Act does not implicate either of
the two primary objectives of criminal punishment: retribution or deterrence.” 783 In addressing
this issue, Hendricks firmly settled a question that has troubled many courts—whether civil
777
Kan. Stat. Ann. § 59-29a02(a) (1994); see also Hendricks, 521 U.S. at 352, 117 S. Ct. at
2077.
778
Hendricks, 521 U.S. at 355, 117 S. Ct. at 2078.
779
Id. at 356, 117 S. Ct. at 2079.
780
Id. at 359, 117 S. Ct. at 2080.
781
Id. at 359, 117 S. Ct. at 2081.
782
Id. at 358, 117 S. Ct. at 2080.
783
Id. at 361-62, 117 S. Ct. at 2082.
103

confinement of a dangerous person primarily for purposes of public protection is a non-punitive
civil purpose. Such confinement is often derisively termed “preventive detention.” 784 The
Supreme Court clearly held that such confinement is not punitive for the purposes of double
jeopardy and ex post facto prohibitions:
[T]he Kansas court’s determination that the Act’s “overriding concern” was the
continued “segregation of sexually violent offenders” is consistent with our
conclusion that the Act establishes civil proceedings, especially when that
concern is coupled with the State’s ancillary goal of providing treatment to those
offenders, if such is possible. While we have upheld state civil commitment
statutes that aim both to incapacitate and to treat, we have never held that the
Constitution prevents a State from civilly detaining those for whom no treatment
is available, but who nevertheless pose a danger to others. A State could hardly
be seen as furthering a “punitive” purpose by involuntarily confining persons
affected with an untreatable, highly contagious disease. 785
While Justice Kennedy offered additional comments in a concurring opinion, he
nonetheless joined the Court’s majority opinion “in full.” 786
Justice Breyer wrote a dissenting opinion. He agreed that Hendricks’ mental disorder
was sufficient to satisfy the requirements of substantive due process. 787 But he did “not
subscribe to all of [the] reasoning” of the majority opinion, and instead identified three limiting
circumstances that he believed combined to make Hendricks’ disorder constitutionally sufficient
for commitment:
(1) many mental health professionals consider pedophilia a serious mental
disorder; and (2) Hendricks suffers from a classic case of irresistible impulse,
namely he is so afflicted with pedophilia that he cannot “control the urge” to
molest children; and (3) his pedophilia presents a serious danger to those children
. . . . 788
While Justice Breyer agreed that substantive due process was satisfied in Hendricks’
case, he concluded that Hendricks’ commitment constituted punishment, and was thus precluded
by the prohibition against ex post facto laws. Justice Breyer observed that a remedial,
non-punitive law would be expected to provide treatment for a person committed because of a
784 See, e.g., Blodgett, 510 N.W.2d at 918 (Wahl dissenting); but see Zadvydas v. Davis, 533
U.S. 678, 690-91, 121 S. Ct. 2491, 2499 (2001) (describing Hendricks as allowing preventive
detention “where a special justification, such as harm-threatening mental illness, outweighs the
‘individual’s constitutionally protected interest in avoiding physical restraint”).
785 Hendricks, 521 U.S. at 366, 117 S. Ct. at 2084 (citation omitted). In a later case, the Supreme
Court non-pejoratively referred to the civil commitment involved in Hendricks as permissible
“preventive detention.” Zadvydas v. Davis, 533 U.S. 678, 690-91, 121 S. Ct. 2491, 2499 (2001).
786 Hendricks, 521 U.S. at 371, 117 S. Ct. at 2087.
787 Id. at 373, 117 S. Ct. at 2087-88.
788 Id. at 376-77, 117 S. Ct. at 2089.
104

mental abnormality, to the extent that such treatment may be available. 789 He said Kansas
delayed treatment until after the person’s prison sentence was completed, did not attempt to
provide meaningful treatment to persons even after commitment, and did not require the
consideration of less restrictive alternatives to placement in the state treatment program. 790 He
concluded: “The statutory provisions before us do amount to punishment primarily because . . .
the legislature did not tailor the statute to fit the nonpunitive civil aim of treatment, which it
concedes exists in Hendricks’ case.” 791
Justice Breyer’s dissenting opinion was joined in full by Justices Stevens and Souter, and
in part by Justice Ginsburg.
3. Linehan IV—substantive due process, ex post facto and double
jeopardy in light of Hendricks.
After it decided Hendricks, the U.S. Supreme Court granted certiorari in Linehan III,
vacated the decision and remanded it to the Minnesota Supreme Court to reconsider in light of
Hendricks. 792 The state supreme court issued its decision, Linehan IV, in May 1999. 793
In a 4-2-1 decision, the state supreme court in Linehan IV again upheld the
constitutionality of the SDP law, but adopted an interpretation of Hendricks falling between the
positions argued by Linehan and the State. Linehan argued that substantive due process, as
interpreted in Hendricks, requires an utter lack of power to control (i.e., the Pearson standard) to
support a sexual predator civil commitment. The State contended that Hendricks did not require
a separate showing of inability to control, but instead held that the three elements of the Kansas
statute (similar to those of Minnesota’s SDP law) “narrow[ed] the class of persons eligible for
commitment to those who are unable to control their dangerousness.” 794 The State’s alternative
argument on this point was that, even if Hendricks required some showing of inability to control,
it was not a complete or utter inability to control, as Linehan argued, but only lack of adequate
control, or difficulty in controlling behavior.
This state supreme court in Linehan IV adopted this middle position. The court held that,
despite the SDP law’s statement that the petitioner need not show inability to control, the law
must be interpreted in light of Hendricks to require a showing of some impairment of that ability:
We now clarify that the SDP Act allows civil commitment of sexually dangerous
persons who have engaged in a prior course of sexually harmful behavior and
whose present disorder or dysfunction does not allow them to adequately control
789
Id. at 382-83, 117 S. Ct. at 2092.
790
Id. at 383-89, 117 S. Ct. at 2092-95.
791
Id. at 396, 117 S. Ct. at 2098.
792
522 U.S. 1011, 118 S. Ct. 596 (1997).
793
In re Linehan (Linehan IV), 594 N.W.2d 867 (Minn. 1999), cert. denied, 528 U.S. 1049
(1999).
794
See Hendricks, 521 U.S. at 358, 117 S. Ct. at 2080.
105

their sexual impulses, making it highly likely that they will engage in harmful
sexual acts in the future. 795
The court then examined whether the record showed by clear and convincing evidence that
Linehan satisfied the commitment standard identified in the decision: “We review only whether
appellant demonstrates a lack of adequate control over his sexually harmful behavior based on
the district court’s findings.” 796 The court affirmed Linehan’s commitment, holding that the
“district court records . . . are replete with findings concerning appellant’s lack of volitional
control over his sexually dangerous tendencies.” 797
Linehan also argued that Hendricks provided additional support for his double jeopardy
and ex post facto arguments, and that Hendricks required states to provide certain procedural
measures, including jury trial, proof beyond a reasonable doubt and periodic review with the
burden on the state to show that the commitment requirements continue to be met. The state
court in Linehan IV held that Hendricks supported the court’s rejection of Linehan’s double
jeopardy and ex post facto arguments in Linehan III, and that the U.S. Supreme Court had not
considered any procedural due process arguments in Hendricks. 798
Justice Page dissented from the court’s decision upholding the law. 799 Justice Lancaster
wrote a decision, joined by Justice Paul Anderson, concurring in part and dissenting in part. 800
These latter two justices did not disagree that with the majority’s interpretation of Hendricks, or
its determination that Linehan satisfied the “inability to adequately control” standard. But they
did not believe it possible to interpret the SDP law to contain an “inability to adequately control”
requirement.
The U.S. Supreme Court denied Linehan’s certiorari petition. 801
4. Disposition of other cases, after Linehan IV.
A number of other SDP-only commitment cases were held in abeyance, awaiting the
supreme court’s decision in Linehan IV. Following that decision, the court of appeals reviewed
the case records to determine whether the trial courts’ findings supported a conclusion that the
person lacked adequate control over his sexual impulses. In some cases, the appellate court
determined that this standard was met, and affirmed the decision. 802 In other cases, the court
remanded the case to the trial court for additional fact finding. 803
795
Linehan IV, 594 N.W.2d at 876.
796
Id.
797
Id.
798
Id. at 871-72 & n.2.
799
Id. at 878.
800
Id. at 885.
801
528 U.S. 1049, 120 S. Ct. 587 (1999).
802
See, e.g., In re Coleman, No. C1-96-216 (Minn. Ct. App. Ord. Opin. July 22, 1999).
803
See, e.g., In re Schweninger, No. C1-96-362 (Minn. Ct. App. Ord. Opin. July 28, 1999).
106

In subsequent appeals in those cases, the court of appeals affirmed the trial court’s
practice of determining the lack-of-adequate-ability-to-control issue on the existing record, even
though the proposed patient had requested a new trial on the issue. This practice was approved
both when ability to control had been an issue at trial in the case (because commitment under the
SPP statute had also been sought) 804 and where inability to control was not directly at issue at
trial, but there had been evidence addressing it. 805 Whether to grant a new trial on the issue was
within the discretion of the trial court, and the court’s decision was reviewed under the abuse-ofdiscretion
standard. 806
5. U.S. Supreme Court decision in Kansas v. Crane—inability to control.
In 2002, the U.S. Supreme Court issued a decision in a second Kansas case, Kansas v.
Crane, 807 clarifying its holding in Hendricks concerning inability to control behavior. The
Kansas Supreme Court in In re Crane 808 held that Hendricks required “a finding that the
defendant cannot control his dangerous behavior,” and overturned Crane’s commitment because
the jury had not been instructed to make such a finding. Kansas petitioned for certiorari to the
U.S. Supreme Court, challenging that holding.
The parties in Crane made the same arguments that the parties made to the Minnesota
Supreme Court in Linehan IV. Crane argued that Hendricks required the State to show that the
person has a complete inability to control his behavior. The State, on the other hand, argued that
no showing of inability to control is required, except for that implicit in the commitment
standard—that the person engages in harmful conduct because of his mental disorder. And, as
the Minnesota Supreme Court did in Linehan IV, the high Court adopted an intermediate
position, stating:
[W]e recognize that in cases where lack of control is at issue, “inability to control
behavior” will not be demonstrable with mathematical precision. It is enough to
say that there must be proof of serious difficulty in controlling behavior. And
this, when viewed in light of such features of the case as the nature of the
psychiatric diagnosis, and the severity of the mental abnormality itself, must be
sufficient to distinguish the dangerous sexual offender whose serious mental
804
In re Martinelli, No. C4-00-748, 2000 WL 1285430, at *2-3 (Minn. Ct. App. Sept. 12, 2000)
(unpublished), review denied (Minn. 2000), vacated and remanded, 534 U.S. 1160, 122 S. Ct.
1171 (2002), aff’d after remand, 649 N.W.2d 886 (Minn. Ct. App. 2002).
805
In re Prather, No. C0-00-987, 2000 WL 1778321, at *3 (Minn. Ct. App. Nov. 21, 2000)
(unpublished).
806
Id.; In re Martinelli, No. C4-00-748, 2000 WL 1285430, at *3 (Minn. Ct. App. Sept. 12,
2000) (unpublished), review denied (Minn. 2000), vacated and remanded, 534 U.S. 1160, 122
S. Ct. 1171 (2002), aff’d after remand, 649 N.W.2d 886 (Minn. Ct. App. 2002).
807
Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867 (2002).
808
In re Crane, 7 P.3d 285 (Kan. 2000), vacated and remanded, 534 U.S. 407, 122 S. Ct. 867
(2002).
107

illness, abnormality, or disorder subjects him to civil commitment from the
dangerous but typical recidivist convicted in an ordinary criminal case. 809
The Court also engaged in a rather obscure discussion of “volitional impairment” of
ability to control, as opposed to “emotional impairment.” The Court explained that, by
“volitional impairment,” it referred to situations in which the person has sexual urges that the
person has particular difficulty in controlling. The Court said:
Hendricks himself stated that he could not “control the urge” to molest children.
In addition, our cases suggest that civil commitment of dangerous sexual
offenders will normally involve individuals who find it particularly difficult to
control their behavior—in the general sense described above. 810
But the Court appeared to indicate that commitment would be permissible in cases of
“emotional” abnormalities, as well as “volitional” ones. The Court said:
Hendricks must be read in context. The Court did not draw a clear distinction
between the purely “emotional” sexually related mental abnormality and the
“volitional.” Here, as in other areas of psychiatry, there may be “considerable
overlap between a . . . defective understanding or appreciation and . . . [an] ability
to control . . . behavior.” Nor, when considering civil commitment, have we
ordinarily distinguished for constitutional purposes among volitional, emotional,
and cognitive impairments. 811
By this discussion, the Court was apparently recognizing that “serious difficulty in controlling
behavior” could arise not only where the person’s disorder renders him unable to avoid sexual
assault, despite his desire to avoid it, but also in situations where the disorder causes the person
to want to engage in sexual assault (emotional impairments) or causes the person to not
understand the nature of what he is doing (cognitive impairments).
Justice Scalia, joined by Justice Thomas (who had authored the plurality opinion in
Hendricks), dissented from the majority opinion. The two wrote: “It could not be clearer that, in
the Court’s estimation [in Hendricks], the very existence of a mental abnormality or personality
disorder that causes a likelihood of repeat sexual violence in itself establishes the requisite
‘difficulty if not impossibility’ of control.” 812
6. Cases addressing Minnesota’s laws following Crane.
Following Crane, several committed persons asserted that the Linehan IV standard does
not comply with Crane. These challenges were rejected.
809
Kansas v. Crane, 534 U.S. at 413, 122 S. Ct. at 870 (emphasis added).
810
Id. at 414, 122 S. Ct. at 871.
811
Id. at 415, 122 S. Ct. at 871-72 (citations omitted, additions and ellipses in original).
812
Id. at 419-20, 122 S. Ct. at 874 (Scalia, J., dissenting) (emphasis added).
108

Immediately after the decision in Crane, the appellant in In re Ramey argued that the
Linehan IV standard under which he was committed—“does not allow them to adequately
control”—did not comply with the Crane requirement that “there must be proof of serious
difficulty in controlling behavior” or Crane’s requirement that the person’s disorder must be
sufficient to distinguish him from the ordinary criminal recidivist. 813 The court of appeals
rejected the claim, holding that the Linehan IV standard comports with Crane, 814 and the state
supreme court denied review.
In a second case, In re Martinelli, the state appellate court again held that the Linehan IV
standard was consistent with Crane. 815 The court termed the difference between the Crane
“serious difficulty in controlling behavior” standard and Linehan IV’s “does not allow them to
adequately control their sexual impulses” standard only a “semantic distinction.” 816 It noted that
the U.S. Supreme Court in Crane had declined to “give the phrase ‘lack of control’ a particularly
narrow or technical meaning,” and had expressly stated that it “was not laying down any ‘bright
line rules.’” 817 The appellate court held that Martinelli’s lack of ability to control, considered in
light of his diagnoses of hebephilia and antisocial personality disorder, “was sufficient to
distinguish Martinelli from the ‘typical recidivist’ offender, as required by Crane.” 818 The state
supreme court denied Martinelli’s petition for review and the United States Supreme Court
denied certiorari.
The third significant case to address the Linehan IV/Crane issue was an Eighth Circuit
decision involving Linehan, himself. In Linehan v. Milczark, a habeas corpus case, the circuit
court held that the Linehan IV standard complies with the dictates of Crane. 819 Significantly, the
court held that evidence meeting the Linehan IV standard is per se sufficient to distinguish the
committed person from the typical recidivist, and thus that Crane’s “sufficient to distinguish”
language does not impose a separate requirement to be proved. The circuit court said:
The standard enunciated in Linehan IV requires a finding of “lack of adequate
control” in relation to a properly diagnosed disorder or dysfunction, as well as
findings of past sexual violence and resultant likelihood of future sexually
dangerous behavior. This combination of required findings will adequately
distinguish an offender subject to civil commitment, who has difficulty
controlling his behavior because of a disorder or dysfunction, from the more
813
In re Ramey, 648 N.W.2d 260 (Minn. Ct. App. 2002).
814
Id. at 267. The appellate court also rejected Ramey’s claim that Linehan IV’s inability-toadequately-control
requirement was unconstitutionally vague. Id. at 267-68.
815
In re Martinelli, 649 N.W.2d 886, 888 (Minn. Ct. App. 2002), review denied (Minn. Oct. 29,
2002), cert. denied, 538 U.S. 933 (2003); see also In re Jannetta, No. A07-2049, 2008 WL
669115, *5-6 (Minn. Ct. App. Mar. 11, 2008) (unpublished).
816
Id. at 891; see also Prather v. O’Keefe, No. A03-860, 2003 WL 23024537 (Minn. Ct. App.
Dec. 30, 2003) (unpublished) (holding that, in light of previous Linehan IV decision, Crane did
not change the applicable commitment standard in Minnesota).
817
Martinelli, 649 N.W.2d at 890 (quoting Crane, 534 U.S. at 413).
818
Id.
819
Linehan v. Milczark, 315 F.3d 920, 924 (8th Cir. 2003).
109

typical offender with behavioral problems, who is best dealt with in the criminal
system. The SDP Act standard, as narrowed by the Minnesota Supreme Court in
Linehan IV, therefore adequately distinguishes between the typical recidivist and
the dangerous sexual offender and complies with substantive due process
requirements. 820
7. Other constitutional issues under SDP law.
In other cases, the court of appeals has addressed constitutional challenges to the SDP
law not decided in Linehan III and Linehan IV. On several occasions the court has rejected
arguments that the SDP law is unconstitutionally vague. 821 In In re Ramey, the court rejected
arguments that the “inability to adequately control” and “course” of harmful sexual conduct
requirements were too vague. 822 In In re Martin, the court rejected an argument that the term
“sexual conduct” was unconstitutionally vague as applied to sexually motivated stalking
behavior. 823 In In re Fox, the court rejected the argument that the statute is unduly vague
because it leads to arbitrary enforcement where the county attorney pursues commitment despite
a determination by the Department of Corrections not to refer the case for commitment. 824
The court of appeals has held that the SDP law’s rebuttable presumption of
harmfulness of conduct that would violate specified criminal statutes does not
unconstitutionally shift the burden of proof to the respondent. 825
820
Id. at 927 (emphasis added); see also In re Jannetta, No. A07-2049, 2008 WL 669115, *5-6
(Minn. Ct. App. Mar. 11, 2008) (unpublished); In re Tallman, No. A07-58, 2007 WL 1412979,
at *4 (Minn. Ct. App. May 15, 2007) (unpublished).
821
In re Schweninger, No. C1-96-362, 1997 WL 613670 (Minn. Ct. App. Oct. 7, 1997), review
denied (Minn. 1997), vacated and remanded, 525 U.S. 802, 119 S. Ct. 33 (1998); In re Coleman,
Nos. C1-96-216, C0-96-1521, 1997 WL 585902 (Minn. Ct. App. Sept. 23, 1997), review denied
(Minn. Nov. 18, 1997), vacated and remanded, 524 U.S. 924 (1998), aff’d after remand, No. C1-
96-216 (Minn. Ct. App. Ord. Opin. July 28, 1999); In re Crocker, No. C0-95-2500, 1996 WL
192974 (Minn. Ct. App. Apr. 23, 1996), aff’d (Minn. Jan. 21, 1997); In re Edstrom, No. C2-95-
2448, 1996 WL 132141 (Minn. Ct. App. Mar. 26, 1996), aff’d (Minn. Jan. 21, 1997).
822
In re Ramey, 648 N.W.2d 260, 267-69 (Minn. Ct. App. 2002); see also In re Mosby,
No. A07-755, 2007 WL 2781806, at *4 (Minn. Ct. App. Sept. 25, 2007) (unpublished); In re
Tallman, No. A07-58, 2007 WL 1412979, at *4 (Minn. Ct. App. May 15, 2007) (unpublished);
In re McRae, No. A04-2028, 2005 WL 646801, at *2 (Minn. Ct. App. Mar. 22, 2005)
(unpublished) (addressing “adequate control” language); In re Fox, No. A03-1019, 2004 WL
61111, at *4-5 (Minn. Ct. App. Jan. 13, 2004) (unpublished).
823
In re Martin, 661 N.W.2d 632, 640 (Minn. Ct. App. 2003).
824
In re Fox, No. A03-1019, 2004 WL 61111, at *5 (Minn. Ct. App. Jan. 13, 2004)
(unpublished).
825
In re Kindschy, 634 N.W.2d 723, 729-31 (Minn. Ct. App. 2001), review denied (Minn. 2001).
110

C. Constitutional Challenges Applicable To Both Statutes.
1. Standards of review and procedural requirements for constitutional
issues.
The standard of review normally applied to constitutional challenges is well established:
Whether a statute is constitutional is a question of law subject to de novo
review. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). When considering the
constitutionality of a statute, we are mindful that laws come to this court with a
presumption of validity and may be declared unconstitutional only with great
caution and only if absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364
(Minn. 1989). A person challenging the constitutionality of a statute has the
burden of establishing beyond a reasonable doubt that the statute violates a
claimed right. In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn.
1996). 826
For one type of constitutional challenge, however, the burden is at least partially on the
government. When a person challenges a civil commitment standard as violating substantive due
process, the law is subject to “strict scrutiny” because it involves the committed person’s
fundamental right to liberty. 827 In such cases, the burden is on the government to show that the
law is narrowly tailored to serve a compelling state interest. 828
The standard applicable to equal protection challenges under the Minnesota Constitution
involving the substance of civil commitment statutes is also noteworthy. Our supreme court has
said that “intermediate scrutiny” applies to such challenges. Under this standard, “the statute’s
genuine and substantial distinctions must be reasonably connected to achieving the state’s
legitimate purposes.” 829 “Deference to the legislature is due,” however. 830 This standard is
higher than the ordinary “rationally related to a legitimate state interest” standard.
The court of appeals is bound by, i.e., may not overturn, precedent from the state supreme
court. 831
826
Id. at 729.
827
In re Linehan (Linehan III), 557 N.W.2d 171, 181, vacated and remanded, 522 U.S. 1011
(1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999).
828
Id.
829
Id. at 186.
830
Id.
831
In re Webber, No. A08-1903, 2009 WL 1119239, at *8 (Minn. Ct. App. Apr. 28, 2009),
review denied (Minn. June 30, 2009) (unpublished) (citing State v. Ward, 580 N.W.2d 67, 74
(Minn. Ct. App. 1998); In re Braylock, No. A06-1053, 2006 WL 3409875, at *4 (Minn. Ct. App.
Nov. 28, 2006) (unpublished) (same).
111

Although the appellate rules require a party challenging the constitutionality of a statute
to give notice to the Attorney General, the rule is not an absolute bar to considering the
constitutional issue. 832
2. Rulings on particular constitutional issues.
In two cases under the SDP law, the state court of appeals has rejected an argument that
the law violates equal protection by providing more lenient standards for commitment of
someone as an SDP than as mentally ill and dangerous. 833 And the appellate court has rejected
the equal protection claim that others with similar backgrounds and histories are not subject to
commitment, because the legislature could determine that the class of persons described by the
statute presented a special harm. 834
The lack of a recent overt act requirement in the SPP and SDP laws does not violate due
process. While some other state courts have recognized such a requirement, the purpose of such
a requirement is to enhance the prediction of dangerousness, which Minnesota’s law does in
other ways. 835
The court of appeals has rejected the argument that the SPP law violates double
jeopardy because of treatment of committed persons under the Vulnerable Adults Act, voting
laws, and a statute requiring a person committed to the Department of Corrections and as SPP to
first serve his prison sentence. 836 Moreover, the appellate court has rejected the argument that,
because confinement at the Minnesota Sex Offender Program may be secure enough to qualify
for “jail credit” in sentencing, it must be considered punitive for purposes of double jeopardy
analysis. 837 Likewise, the court has held that the fact that the Minnesota Sex Offender Program
operates parallel programs in the state prison system and in the state Department of Human
832
In re Brewer, No. A08-2264, 2009 WL 1182608, at *1 (Minn. Ct. App. May 5, 2009)
(unpublished).
833
In re Schweninger, No. C1-96-362, 1997 WL 613670 (Minn. Ct. App. Oct. 7, 1997), review
denied (Minn. 1997), vacated and remanded, 525 U.S. 802 (1998); In re Coleman, Nos. C1-96-
216, C0-96-1521, 1997 WL 585902 (Minn. Ct. App. Sept. 23, 1997), review denied (Minn. Nov.
18, 1997), vacated and remanded, 524 U.S. 924 (1998), aff’d after remand, No. C1-96-216
(Minn. Ct. App. Ord. Opin. July 28, 1999); see also In re Martin, 661 N.W.2d 632, 641 (Minn.
Ct. App. 2003).
834
In re Stringer, No. A05-2240, 2006 WL 2129829, at *5-6 (Minn. Ct. App. Aug. 1, 2006)
(unpublished), (citing Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 275, 60 S. Ct.
523, 526 (1940)).
835
In re Urbanek, No. A05-1633, 2006 WL 44358, at 3 (Minn. Ct. App. Jan. 10, 2006)
(unpublished); see also In re Markey, No. A05-2453, 2006 WL 1229726, at *2 (Minn. Ct. App.
May 9, 2006) (unpublished).
836
Joelson v. O’Keefe, 594 N.W.2d 905, 911-12 (Minn. Ct. App. 1999); see also In re Martin,
661 N.W.2d 632, 641 (Minn. Ct. App. 2003) (rejecting general double jeopardy argument).
837
In re Green, No. A06-2272, 2007 WL 1532156, at *6 (Minn. Ct. App. May 29, 2007)
(unpublished).
112

Services does not render the DHS program the equivalent of correctional confinement. 838
Similarly, even though the appellate court held that matters covered by the SDP and SPP laws
are akin to criminal laws for the purposes of considering issues of jurisdiction over members of
Indian bands, this does not mean that the laws are punitive for purposes of double jeopardy. 839
And the appellate court has held that, “[b]ecause the [SDP] statute’s justification is the state’s
interest in public protection and treatment rather than punishment, it cannot be cruel and
unusual” punishment. 840
The appellate court has rejected the argument that the lack of discharges of persons
committed as SPP/SDP from the Minnesota Sex Offender Program renders the commitments
violative of due process, equal protection or the prohibitions against double jeopardy and ex post
facto laws. 841 The appellate court noted the statement in In re Blodgett that, “[s]o long as civil
commitment is programmed to provide treatment and periodic review, due process is
provided.” 842 The court also observed that issues about the adequacy of treatment in the state
program, possible success in treatment and future opportunity for discharge are factually and
procedurally premature at the time of commitment. 843
838
In re Ponicki, No. A09-945, 2009 WL 3818390, at *4 (Minn. Ct. App. Nov. 17, 2009)
(unpublished), review denied (Minn. Dec. 23, 2009).
839
In re Giishig, No. A07-0616, 2007 WL 2601423, at 14 (Minn. Ct. App. Sept. 11, 2007)
(unpublished).
840
In re Lincoln, No. A08-0896, 2008 WL 4909853, at *6 (Minn. Ct. App. Nov. 18, 2008),
review denied (Minn. Jan. 20, 2009) (unpublished); In re McRae, No. A04-2028, 2005 WL
646801, at *3 (Minn. Ct. App. Mar. 22, 2005) (unpublished); see also Senty-Haugen v. Goodno,
462 F.3d 876, 889 (8th Cir. 2006) (holding that, because committed person is not a prisoner,
claim of improper treatment is not properly analyzed under cruel-and-unusal-punishment
theory).
841
In re Harrison, No. A07-1181, 2007 WL 4305377, at *7 (Minn. Ct. App. Dec. 11, 2007)
(unpublished) (saying, “The absence of a guaranteed success rate in treatment . . . does not
establish that civil commitment as an SDP or an SPP violates substantive due process”); In re
Christiansen, No. A07-1290, 2007 WL 4305465, at *9-10 (Minn. Ct. App. Dec. 11, 2007)
(unpublished); In re Anderson, No. A06-2008, 2007 WL 824019, at *7-8 (Minn. Ct. App.
Mar. 20, 2007) (unpublished); In re Alverson, No. A06-1567, 2007 WL 447159, at *11-12
(Minn. Ct. App. Feb. 13, 2007) (unpublished); In re Foley, No. A04-2340, 2005 WL 1154334, at
*7 (Minn. Ct. App. May 17, 2005) (unpublished); In re Fernandes, No. A06-506, 2006 WL
2947642, at *2 (Minn. Ct. App. Oct. 17, 2006) (unpublished); In re Kirckof, No. A06-956, 2006
WL 3007995, at *8 (Minn. Ct. App. Oct. 24, 2006) (unpublished).
842
In re Jannetta, No. A07-2049, 2008 WL 669115, at *6 (Minn. Ct. App. Mar. 11, 2008)
(unpublished); In re Anderson, No. A06-2008, 2007 WL 824019, at *7 (Minn. Ct. App. Mar. 20,
2007) (unpublished); In re Foley, No. A04-2340, 2005 WL 1154334, at *7 (Minn. Ct. App.
May 17, 2005) (unpublished).
843
In re Travis, 767 N.W.2d 52 (Minn. Ct. App. 2009); In re Jannetta, No. A07-2049, 2008 WL
669115, at *6 (Minn. Ct. App. Mar. 11, 2008) (unpublished); In re Harrison, No. A07-1181,
2007 WL 4305377, at *7 (Minn. Ct. App. Dec. 11, 2007) (unpublished); In re Christiansen,
No. A07-1290, 2007 WL 4305465, at *10 (Minn. Ct. App. Dec. 11, 2007) (unpublished); In re
Semler, No. A06-2213, 2007 WL 969081, at *5 (Minn. Ct. App. Apr. 3, 2007) (unpublished); In
113

And the court also has rejected an argument that an executive order by the Governor
concerning the release of committed persons violates due process or equal protection or renders
the statute or the commitment punitive. 844
The court of appeals has ruled that the Minnesota Sex Offender Program does not violate
the Fifth Amendment’s privilege against self-incrimination by requiring participants to admit
sex offenses as part of their treatment, even if they are still within the perjury statute of
limitations. 845 The court held that, on the record in that case, neither the incrimination nor the
compulsion element of self-incrimination was established. 846 A representative of the treatment
program testified that MSOP patients could participate without disclosing identifying
information about victims. 847 And the court held that mere inability to progress in treatment due
to failure to disclose did not constitute “compulsion” for purposes of the Fifth Amendment. 848
Both the state court of appeals and the U.S. District Court have held that the U.S.
Supreme Court’s decision in Hendricks did not require a state to provide the procedures
required under the Kansas statute at issue there, including jury trials, proof beyond a
reasonable doubt or that a state must provide periodic judicial review where the state must
prove that the initial commitment requirements continue to be met. 849 And the state court of
re Anderson, No. A06-2008, 2007 WL 824019, at *8 (Minn. Ct. App. Mar. 20, 2007)
(unpublished); In re Fernandes, No. A06-506, 2006 WL 2947642, at *2 (Minn. Ct. App. Oct. 17,
2006) (unpublished); In re Gorden, No. A06-43, 2006 WL 1806464, at *8 (Minn. Ct. App.
July 3, 2006) (unpublished).
844
In re Sargent, No. A04-1767, 2005 WL 406345, at *5 (Minn. Ct. App. Feb. 22, 2005)
(unpublished); In re Hartleib, No. A04-863, 2004 WL 2283558, at *2-3 (Oct. 12, 2004)
(unpublished); In re Fugelseth, No. A03-1330, 2004 WL 422695, at *7-8 (Minn. Ct. App.
Mar. 9, 2004) (unpublished).
845
Stevens v. Ludeman, No. A07-1195, 2008 WL 2574475 (Minn. Ct. App. July 1, 2008)
(unpublished), review denied (Minn. Sept. 23, 2008).
846
Id. at *2-3.
847
Id. at *2.
848
Id. at *3.
849
Joelson v. O’Keefe, 594 N.W.2d 905 at 910-11; see also In re Fox, No. A03-1019, 2004 WL
61111, at *7 (Minn. Ct. App. Jan. 13, 2004) (unpublished) (addressing jury trial); In re
Chamberlain, No. C6-03-281, 2003 WL 21790534, at *6 (Minn. Ct. App. Aug. 5, 2003)
(unpublished), review denied (Minn. Oct. 21, 2003), cert. denied, 540 U.S. 1225 (2004); In re
Ashman, No. C8-00-1921, 2001 WL 379107, at *4 (Minn. Ct. App. Apr. 17, 2001); In re Wilson,
No. C3-00-434, 2000 WL 1182807 (Minn. Ct. App. Aug. 22, 2000) (unpublished); In re Poole,
Nos. C4-00-85, C8-00-171, 2000 WL 781381 (Minn. Ct. App. June 20, 2000). The five
appellants in Joelson subsequently brought federal habeas petitions also raising the claim that
Hendricks requires a state to provide the same procedures provided under the Kansas statute and
cited in Hendricks. See Joelson v. O’Keefe, No. 99-Civ-1196 (D. Minn.); Patterson v. O’Keefe,
No. 99-Civ-1195 (D. Minn.); Caprice v. O’Keefe, No. 99-Civ-1197 (D. Minn.); Mattson v.
O’Keefe, No. 99-Civ-1198 (D. Minn.); Duvall v. O’Keefe, No. 99-Civ-1199 (D. Minn.). In each
case, the court rejected the argument that a state must use the procedures identified in Hendricks.
114

appeals has specifically held that the Minnesota commitment act’s clear-and-convincingevidence
standard is constitutional under the U.S. Supreme Court’s decision in Addington v.
Texas. 850
In Pearson, 851 the Minnesota Supreme Court held that the civil jury trial guarantee in our
state constitution (now contained in Minn. Const. art. 1, § 4) does not guarantee a right to jury
trial in psychopathic personality commitment cases. In State ex rel. Anderson v. U.S. Veterans
Hospital, 852 the supreme court reiterated this proposition for all civil commitment cases in
Minnesota. Many recent court of appeals decisions have reaffirmed this holding under both the
SPP and SDP laws, 853 rejecting arguments raised in a 2003 law review article. 854 Likewise, the
See, e.g., Patterson v. O’Keefe, No. 99-Civ-1195, Rep’t & Recomm. at 13-14 (D. Minn. Aug. 31,
2000) (“no where did the [Supreme] Court mandate every State to adopt such procedures”). See
also Woodruff v. O’Keefe, No. 00-Civ-2478, Rep’t & Recomm. at 7, 13-14 (D. Minn. May 30,
2001); Poole v. O’Keefe, No. 01-Civ-1460, Mem. & Order at 3-4 (D. Minn. Apr. 10, 2002).
850
In re Moore, No. A09-623, 2009 WL 2747980 (Minn. Ct. App. Sept. 1, 2009) (unpublished)
(relying on Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979), and rejecting reasoning of
United States v. Comstock, 507 F. Supp. 2d 522 (E.D. N.C. 2007); In re Hatton, No. A08-0648,
2008 WL 4301816, at *1 (Minn. Ct. App. Sept. 23, 2008) (unpublished) (citing Addington v.
Texas, 441 U.S. 418, 99 S. Ct. 1804 (1979)); In re Knutson, No. A05-1204, 2005 WL 3159930,
at *8 (Minn. Ct. App. Nov. 29, 2005) (unpublished); In re Daniels, No. A03-623, 2003 WL
22707418, at *5 (Minn. Ct. App. Nov. 18, 2003) (unpublished); In re Ashman, No. C8-00-1921,
2001 WL 379107, at *4 (Minn. Ct. App. Apr. 17, 2001); In re Martinelli, No. C6-98-569, 1998
WL 613845, at *4 (Minn. Ct. App. Sept. 15, 1998) (unpublished), remanded (Minn. Aug. 5,
1999), appeal after remand, No. C4-00-748, 2000 WL 1285430 (Minn. Ct. App. Sept. 12, 2000)
(unpublished), review denied (Minn. 2000), vacated and remanded, 534 U.S. 1160, 122 S. Ct.
1171 (2002), aff’d after remand, 649 N.W.2d 886 (Minn. Ct. App. 2002), citing State v. Ward,
369 N.W.2d 293, 296 (Minn. 1985).
851
State ex rel Pearson v. Probate Court, 287 N.W. 297, 302 (Minn. 1939), aff’d, 309 U.S. 270
(1940).
852
State ex rel. Anderson v. U.S. Veterans Hosp., 128 N.W.2d at 716 & n.16 (Minn. 1964).
853
In re Stringer, No. A05-2240, 2006 WL 2129829, at *7 (Minn. Ct. App. Aug. 1, 2006)
(unpublished); In re Markham, No. A05-2221, 2006 WL 696540, at *7 (Minn. Ct. App. Mar. 21,
2006) (unpublished); In re Knutson, No. A05-1204, 2005 WL 3159930, at *8 (Minn. Ct. App.
Nov. 29, 2005) (unpublished); In re Deloach, No. A05-985, 2005 WL 2496010, at *3 n.2 (Minn.
Ct. App. Oct. 11, 2005) (unpublished); In re Yazzie, No. A05-750, 2005 WL 2130605, at *4
(Minn. Ct. App. Sept. 6, 2005) (unpublished); In re McEiver, No. A04-2002, 2005 WL 704298,
at *1 (Minn. Ct. App. Mar. 29, 2005) (unpublished); In re McRae, No. A04-2028, 2005 WL
646801, at *3 (Minn. Ct. App. Mar. 22, 2005) (unpublished); In re Sargent, No. A04-1767, 2005
WL 406345, at *1-2 (Minn. Ct. App. Feb. 22, 2005) (unpublished); In re Martin, No. A04-1634,
2005 WL 354088, at *5 (Minn. Ct. App. Feb. 15, 2005) (unpublished); In re Johnson,
No. A04-1361, 2005 WL 89862, at *3 (Minn. Ct. App. Jan. 18, 2005) (unpublished); In re
Hartleib, No. A04-863, 2004 WL 2283558, at *1 (Minn. Ct. App. Oct. 12, 2004) (unpublished);
In re Larsen, No. A03-1410, 2004 WL 1049844, at *5 (Minn. Ct. App. May 11, 2004)
(unpublished); McDeid v. Mooney, No. A04-36, 2004 WL 728133, at *2 (Minn. Ct. App. Apr. 6,
2004) (unpublished), review denied (Minn. May 26, 2004), cert. denied, 534 U.S. 1034 (2004).
115

courts have rejected jury trial claims based on the federal Seventh Amendment, 855 as well as due
process, 856 equal protection 857 and federal criminal jury trial decisions. 858
The court of appeals has held that the provision of Minn. Stat. § 253B.185, subd. 1, that
allows the respondent to prove that a less restrictive alternative placement is appropriate and
available does not unconstitutionally shift the burden of proof to the respondent. 859 And a
federal district court has held that there is not clearly established federal law providing a
constitutional right to treatment in the least restrictive alternative. 860
The provision in Minn. Stat. § 253B.18, subd. 2, for a 60-day report and review hearing
following the initial commitment is not unconstitutional due to an insufficient time for the patient
to improve his condition. 861
The court of appeals has held that Rule 22 of the Commitment Rules, which allows the
court to order a stay of commitment in an SPP or SDP case only with the agreement of both
parties, does not violate the requirement of separation of powers. 862
854
In re Fox, No. A03-1019, 2004 WL 61111, at *6 (Minn. Ct. App. Jan. 13, 2004)
(unpublished), rejecting reasoning in C. Peter Erlinder, Of Rights Lost and Found: The Coming
Restoration of the Right to a Jury Trial in Minnesota Civil Commitment Proceedings, 29 Wm.
Mitchell L. Rev. 1269 (2003).
855
Poole v. Goodno, 335 F.3d 705, 710-11 (8th Cir. 2003); In re McEiver, No. A04-2002, 2005
WL 704298, at *2 (Minn. Ct. App. Mar. 29, 2005) (unpublished); In re Sargent, No. A04-1767,
2005 WL 406345, at *2 (Minn. Ct. App. Feb. 22, 2005) (unpublished); In re Johnson,
No. A04-1361, 2005 WL 89862, at *4 (Minn. Ct. App. Jan. 18, 2005) (unpublished); In re
Larsen, No. A03-1410, 2004 WL 1049844, at *6 (Minn. Ct. App. May 11, 2004) (unpublished).
856
Poole v. Goodno, 335 F.3d 705, 709-11 (8th Cir. 2003); In re Sargent, No. A04-1767, 2005
WL 406345, at *2 (Minn. Ct. App. Feb. 22, 2005) (unpublished); In re Martin, No. A04-1634,
2005 WL 354088, at *5 (Minn. Ct. App. Feb. 15, 2005) (unpublished); In re Johnson,
No. A04-1361, 2005 WL 89862, at *4 (Minn. Ct. App. Jan. 18, 2005) (unpublished); In re
Hartleib, No. A04-863, 2004 WL 2283558, at *2 (Minn. Ct. App. Oct. 12, 2004) (unpublished);
McDeid v. Mooney, No. A04-36, 2004 WL 728133, at *3 (Minn. Ct. App. Apr. 6, 2004)
(unpublished), review denied (Minn. May 26, 2004), cert. denied, 534 U.S. 1034 (2004).
857
In re McEiver, No. A04-2002, 2005 WL 704298, at *2 (Minn. Ct. App. Mar. 29, 2005)
(unpublished).
858
In re McEiver, No. A04-2002, 2005 WL 704298, at *2-3 (Minn. Ct. App. Mar. 29, 2005)
(unpublished); In re Sargent, No. A04-1767, 2005 WL 406345, at *2 (Minn. Ct. App. Feb. 22,
2005) (unpublished).
859
In re Kindschy, 634 N.W.2d 723, 731 (Minn. Ct. App. 2001), review denied (Minn. 2001); In
re Taylor, No. CX-02-1102, 2002 WL 31890941, at *6 (Minn. Ct. App. Dec. 31, 2002)
(unpublished).
860
Woodruff v. O’Keefe, No. 00-Civ-2478, Rep’t & Recomm. at 15 (D. Minn. May 30, 2001).
861
In re Foster, No. A07-1564, 2008 WL 133918, at *5 (Minn. Ct. App. Jan. 15, 2008)
(unpublished).
862
In re Domrose, No. A07-649, 2007 WL 2703154, at *4 (Minn. Ct. App. Sept. 18, 2007)
(unpublished).
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The court of appeals rejected an argument that substantive due process or the prohibition
against double jeopardy is violated when a person completes sex offender treatment in prison
but is nonetheless civilly committed as an SPP/SDP. 863
The appellate court has held that Minn. Stat. § 253B.185, subd. 1b, which authorizes the
district court to grant a county attorney’s motion for pre-petition access to records regarding a
potential SPP/SDP respondent, is constitutional, at least as applied to a person referred for
possible commitment by the Department of Corrections and where there is “substantial support
in the DOC referral letter and assessment report for the referral of appellant as a possible
candidate for commitment.” 864 In a later case, the court upheld the constitutionality of the
records-access provision against a claim that it violated substantive due process to provide the
county attorney and court access to disclosures the proposed patient was required to make to
successfully participate in prison sex offender treatment. 865 Likewise, the admission of such
admissions in prior treatment records into evidence has been held to be constitutional, not
violative of substantive due process. 866
863
In re Braaten, No. A06-659, 2006 WL 2474274, at *4-7 (Minn. Ct. App. Aug. 29, 2006)
(unpublished).
864
In re Bartholomay, No. C6-01-1104, 2001 WL 1645818, at *5 (Minn. Ct. App. Dec. 26,
2001) (unpublished); see also In re Fugelseth, No. A03-1330, 2004 WL 422695, at *6-7 (Minn.
Ct. App. Mar. 9, 2004) (unpublished).
865
In re Fugelseth, No. A03-1330, 2004 WL 422695, at *6-7 (Minn. Ct. App. Mar. 9, 2004)
(unpublished)
866
In re Leas, No. A06-1234, 2006 WL 3071404, at *2-3 (Minn. Ct. App. Oct. 31, 2006)
(unpublished).
117