Joelson v. O'KEEFE

594 N.W.2d 905, 1999 WL 315027

• Court: Court of Appeals of Minnesota
• Decided: May 18, 1999
• Docket: C7-98-1973, C5-98-2121, C9-98-1974, C3-98-2246, C3-98-2120
• Status: Published

Opinions

OPINION

HARTEN, Judge.

The appellants, all of whom have been committed indeterminately as psychopathic personalities, brought individual petitions for writs of habeas corpus to challenge the constitutionality of their commitments. The district courts denied the petitions and these appeals followed, which we consolidated because they raise similar legal issues. Respondent’s motion to strike portions of the appendices of two appellants (for including materials not part of the trial court record) was unopposed. We affirm and grant in part and deny in part respondent’s motion.

FACTS

Joelson v. O’Keefe (C7-98-1973)

On January 20, 1982, Joelson was initially committed as a psychopathic personality. On April 2, 1982, after a review hearing, his commitment was made indeterminate. A three-judge appeal panel affirmed. After a further appeal, the supreme court upheld his commitment on the merits but remanded it for new evidence on treatment. In re Joelson, 344 N.W.2d 613, 614 (Minn.1984). On remand, the district court found that the Minnesota Security Hospital was the least restrictive placement, which was affirmed on appeal. In re Joelson, 385 N.W.2d 810, 811-12 (Minn.1986).

Joelson then sought discharge from commitment. On August 4, 1995, the Commissioner of Human Services denied his petition. On February 20, 1996, his petition for rehearing and reconsideration before the judicial appeal panel was denied. We affirmed. Joelson v. Petraborg, No. 09-96-805,1996 WL 523804 (Minn. App. Sept.17, 1996), review denied (Minn. Nov. 20, 1996). Joelson petitioned for a writ of habeas corpus. On October 2, 1998, the district court denied the petition, and Joelson appeals.

Patterson v. O’Keefe (C9-98-1974)

On May 3, 1994, Patterson was initially committed as a psychopathic personality. He appealed, challenging the merits and the constitutionality of his commitment. We affirmed. In re Patterson, No. C0-94-1367, 1994 WL 615035 (MinmApp. Nov. 8, 1994), review denied (Minn. Jan. 13, 1995), cert. denied, 515 U.S. 1124, 115 S.Ct. 2281, 132 L.Ed.2d 284 (1995). On March 3, 1995, the district court made his commitment indeterminate after a review hearing. .Patterson’s appeal from the indeterminate commitment was also unsuccessful. In re Patterson, No. C3-95-935 1995 WL 550898 (MinmApp. Sept.19, 1995), review denied (Minn. Nov. 3, 1995). Patterson petitioned for a writ of habeas corpus. On October 2, 1998, the district court denied his petition. Patterson appeals.

Mattson v. O’Keefe (C3-98-2120)

On January 3, 1995, Mattson was initially committed as a psychopathic personality. We affirmed. In re Mattson, No. C5-95-452, 1995 WL 365374 (MinmApp. June 20, 1995), review denied (Minn. Aug. 30, 1995). On October 6, 1995, the district court made his commitment indeterminate. We also affirmed the indeterminate commitment. In re Mattson, No. C8-95-2423, 1996 WL 167638 (Minn.App. Apr.9, 1996), review denied (Minn. May 21, 1996). Mattson petitioned for a writ of habeas corpus. On October 17, 1998, the district court denied his petition. Mattson appeals.

Caprice v. O’Keefe (C5-98-2121)

On February 5, 1993, Julian Caprice, formerly known as Wilbert Buckhalton, was initially committed as a psychopathic personality. We affirmed. In re Buckhalton, 503 N.W.2d 148 (Minn.App.1993), aff'd mem., 518 N.W.2d 531 (Minn.1994). On November 12, 1993, the district court held a review hearing and made his commitment indeterminate. We affirmed the indeterminate commitment. In re Buckhalton, No. C2-93-2428, 1994 WL 43870 (Minn.App. Feb.15, 1994), review denied (Minn. Mar. 31, 1994), cert. denied, 513 , 115 S.Ct. 148, 130 L.Ed.2d 88 (1994). Caprice then sought full discharge. After the Commissioner of Human Services denied his petition, he appealed to the judicial appeal panel, which also denied the petition. Caprice appealed and we affirmed. Caprice v. Gomez, 552 N.W.2d 753 (Minn.App.1996), review denied (Minn. Oct. 29, 1996). Caprice petitioned for a writ of habeas corpus. On October 17, 1998, the district court denied his petition. Caprice appeals.

Duvall v. O’Keefe (C3-98-2246)

On April 4, 1991, Thomas Duvall was committed as a psychopathic personality. On August 14, 1991, his commitment was made indeterminate. We affirmed. In re Duvall, No. C5-91-1799, 1991 WL 276194 (Minn.App. Dec.31, 1991), review denied (Minn. Mar. 26, 1992). Duvall filed his first petition for a writ of habeas corpus, which the district court denied on May 20, 1996. We affirmed. Duvall v. Doth, No. C2-96-1262, 1996 WL 636245 (Minn.App. Nov.5, 1996), review denied (Minn. Jan. 6, 1997). He filed another petition for a writ of habeas corpus. On November 9, 1998, the district court denied the petition. Du-vall appeals.

ISSUES

1. Does the sexual psychopathic personality act comport with substantive due process in light of Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)?

2. Were appellants committed without the requisite showing that they exhibited an utter lack of power to control their sexual impulses?

3. Does Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), impose new procedural requirements that supplement the sexual psychopathic personality act?

4. Does commitment as a sexual psychopathic personality violate the prohibition against double jeopardy?

5.Should respondent’s motion to strike portions of Mattson’s and Caprice’s appendices be granted?

ANALYSIS

An appellate court will review a habeas corpus decision de novo where, as here, the facts are undisputed. State ex rel. Hussman v. Hursh, 253 Minn. 578, 578 n. 1, 92 N.W.2d 673, 673 n. 1 (1958).

Committed persons may challenge the legality of their commitment through habeas corpus. State ex rel. Anderson v. United States Veterans Hosp., 268 Minn. 213, 217, 128 N.W.2d 710, 714 (1964); see MinmStat. ch. 589 (1998) (providing procedures for writ of habeas corpus); Minn.Stat. § 253B.23, subd. 5 (1998) (stating that the commitment statute is not intended to abridge right to habeas corpus). But the only issues the district court will consider are constitutional and jurisdictional challenges. Anderson, 268 Minn. at 217, 128 N.W.2d at 714. Further, appellants are not entitled to obtain review of an issue previously raised. See State ex rel. Crippen v. Tahash, 274 Minn. 565, 565-66, 143 N.W.2d 383, 384 (1966) (declining to address issues in habeas appeal that had been raised previously); State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959) (habeas may not substitute for appeal or be used to collaterally attack commitment).

1. SPP Commitment: Substantive Due Process

Appellants first argue that their sexual psychopathic personality (SPP) commitments violate substantive due process under Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The appellants were committed under either the earlier version of the SPP law, found most recently at MinmStat. § 526.09 (1992), or under the recodified version, renamed “[s]exual- psychopathic personality,” now at Minn.Stat. § 253B.02, subd. 18b (1998).

The supreme court upheld section 526.09 as constitutional against a void for vagueness challenge through the use of narrowing language requiring “an utter lack of power to control [the person’s] sexual impulses.” State ex rel. Pearson v. Probate Court, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940). Minn.Stat. § 253B.02, subd. 18b, incorporates the Pearson language; the legislature did not intend to change the meaning of this law by the recodification. 1994 Minn. Laws 1st Spec. Sess. art. 1, § 5(a). In 1994, the supreme court likewise upheld the constitutionality of the psychopathic personality law under Pearson against substantive due process and equal protection challenges. In re Blodgett, 510 N.W.2d 910, 916-17 (Minn.), cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994).

Appellants contend that Hendricks requires evidence of an inability to control sexual impulses as a constitutional predicate to commitment as a sexual predator. But Minnesota law already requires utter lack of power to control sexual impulses for an SPP' commitment. Minn.Stat. § 253B.02, subd. 18b. Further, Hendricks cited with approval the Minnesota psychopathic personality law. 117 S.Ct. at 2080. Consequently, we need not decide in this case whether Hendricks mandates a showing of an utter lack of power to control sexual impulses for commitment of any sexual predator. We note that this issue currently is pending before the supreme court, which is addressing the constitutionality of the sexually dangerous person (SDP) act, Minn.Stat. § 253B.02, subd. 18c (1998), under Hendricks. In re Linehan, 557 N.W.2d 171 (Minn.1996), vacated & remanded, — U.S. -, 118 S.Ct. 596, 139 L.Ed.2d 486 (1997).

2. Habeas Corpus Appeal Limitations

Appellants next contend that their commitments were based solely on mental disorders, without the necessary evidence or findings as to lack of control. But in none of the cases do the appellants make specific arguments concerning the law or the facts. See, e.g., Blodgett, 510 N.W.2d at 915 (setting out factors to consider in determining whether person exhibited predatory sexual impulse and utter lack of power to control it). When a party does not support an assertion with argument or authority, the argument is waived absent obvious prejudicial error. Schoepke v. Alexander Smith & Sons Carpet, 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971); see In re Bieganowski, 520 N.W.2d 525, 529 (Minn.App.1994) (declining to consider issue when appellant failed to brief it and instead cited arguments in transcript), review denied (Minn. Oct. 27, 1994). Appellants have waived this argument.

Moreover, in all of the instant cases, appellants have already obtained review of the sufficiency of the evidence in other proceedings. See Crippen, 274 Minn. at 565-66, 143 N.W.2d at 384 (declining to address issues in habeas appeal that had been raised previously). In In re Joelson, the supreme court affirmed the holding that there was clear and convincing evidence that Joelson was an SPP within the meaning of Minn.Stat. § 526.09, stating “[n]o further evidence to support this finding is necessary.” In re Joelson, 344 N.W.2d 613, 614 (Minn.1984).

Patterson raised the lack of control issue in his appeal from the initial commitment, and we concluded that the district court correctly held that Patterson lácked the power to control his sexual impulses. In re Patterson, No. C0-94-1367, 1994 WL 615035 (Minn.App. Nov. 8, 1994), review denied (Minn. Jan. 13, 1995), cert. denied, 515 U.S. 1124, 115 S.Ct. 2281 (1995). Patterson raised the issue again in his appeal from his indeterminate commitment, and we again affirmed. In re Patterson, No. C3-95-935, 1995 WL 550898 (Minn.App. Sept.19, 1995), review denied (Minn. Nov. 3,1995).

Mattson also specifically challenged the lack of control determination in the appeal from his initial commitment, which we affirmed. In re Mattson, No. C5-95-452, 1995 WL 365374 (Minn.App. June 20, 1995), review denied (Minn. Aug. 30, 1995). We also upheld the indeterminate commitment, including the district court determination that Mattson continued to have an utter lack of power to control his sexual impulses. In re Mattson, No. C8-95-2423, 1996 WL 167638 (Minn.App. Apr.9, 1996), review denied (Minn. May 21, 1996).

We upheld the Caprice (formerly known as Buckhalton) commitment, specifically addressing the district court’s determination of an utter lack of power to control his sexual impulses. In re Buckhalton, 503 N.W.2d 148, 153 (Minn.App.1993), aff'd mem., 518 N.W.2d 531 (Minn.1994). We also upheld the indeterminate commitment, which included the district court’s finding of an utter lack of control over his sexual impulses. In re Buckhalton, No. C2-93-2428, 1994 WL 43870 (Minn.App. Feb.15, 1994), review denied (Minn. Mar. 31, 1994), cert. denied, 513 U.S. 850, 115 S.Ct. 148, 130 L.Ed.2d 88 (1994).

Finally, we upheld Duvall’s indeterminate commitment and rejected the argument that the threshold issue of lack of control had not been met. In re Duvall, No. C5-91-1799, 1991 WL 276194 (Minn. App. Dec.31, 1991), review denied (Minn. Mar. 26, 1992). Duvall also filed an earlier petition for a writ of habeas corpus. We affirmed the district court’s denial of the petition and declined to review the issue of lack of control that we addressed in the prior appeal. Duvall v. Doth, No. C2-96-1262, 1996 WL 636245 (Minn.App. Nov.5, 1996), review denied (Minn. Jan. 6, 1997).

3. SPP Commitment: Procedural Adequacy

Appellants contend that the SPP law deprives them of their right to procedural due process and that it falls far short of the procedural protections that the United States Supreme Court recognized in upholding Hendricks. We note that the Supreme Court has upheld, against a procedural due process challenge, the psychopathic personality law in a version substantially similar to the present law. State ex rel. Pearson v. Probate Court, 309 U.S. 270, 275-77, 60 S.Ct. 523, 526-27, 84 L.Ed. 744 (1940).

Appellants first challenge the SPP statute because it does not provide for a jury trial in a commitment proceeding. In Hendricks, the subject individual obtained a jury trial to determine beyond a reasonable doubt whether he was a sexually violent predator. Hendricks, 117 S.Ct. at 2078. He then challenged the statute on double jeopardy grounds, contending that the proceeding was criminal in nature because the statute allowed procedural safeguards traditionally found in criminal trials. Id. at 2081-83. The Supreme Court rejected this argument, concluding that the numerous protections merely demonstrated that the legislature authorized confinement of a narrow class of particularly dangerous individuals only after meeting the strictest procedural standards. Id. at 2083. A jury trial was not required. Further, the Minnesota Supreme Court has rejected the argument that a jury trial is required. Pearson, 205 Minn. at 556-57, 287 N.W. at 303.

Appellants also contend the SPP statute is unconstitutional because it fails to require the state to conduct periodic judicial reviews to determine whether the initial commitment standards continue to be met. Hendricks, 117 S.Ct. at 2078 (describing provisions of Kansas statute). But again, the United States Supreme Court did not mandate adoption of these procedures to maintain the constitutionality of a sexual predator commitment law.

Furthermore, the Minnesota Supreme Court has rejected the argument that a patient committed as SPP cannot be subject to continued commitment unless the patient meets the initial criteria for commitment. Call v. Gomez, 535 N.W.2d 312, 319 (Minn.1995). Instead, the supreme court held that as long as the application of statutory discharge criteria meets the constitutional requirement that the nature of the commitment be reasonably related to the purpose for which the person was committed, due process is satisfied. Id. The ultimate burden in discharge proceedings rests on the state. Caprice v. Gomez, 552 N.W.2d 753, 758 (Minn.App. 1996), review denied (Minn. Oct. 29, 1996). Additionally, some of the appellants have already obtained review of their challenges to the discharge proceedings. Id. at 758-59 (upholding discharge procedures against burden of proof, due process, void for vagueness, double jeopardy, and equal protection claims); Joelson v. Petraborg, No. C9-96-805 1996 WL 523804, (Minn. App. Sept.17, 1996) (rejecting same challenges), review denied (Minn. Nov. 20, 1996).

Appellants contend that the supreme court’s interpretation of the requirements in the SDP act as to the likelihood of reoffending should apply to an SPP commitment. Linehan, 557 N.W.2d at 180-81. Commitment as an SDP requires that it be “likely” the person will “engage in acts of harmful sexual conduct.” MinmStat. § 253B.02, subd. 18c(a)(3). In Linehan, the state argued that the meaning of “likely” in the SDP statute was “more likely than not.” 557 N.W.2d at 180. The supreme court construed the SDP act provision to require a showing that the person was “highly likely to engage in harmful sexual conduct” in order to satisfy the clear and convincing evidentiary standard of proof employed in all civil commitments. Id. at 174. Appellants argue that because the same standard was not applied to their SPP commitments, they are unconstitutional.

In imposing this requirement, the supreme court wanted to insure that district courts applied the clear and convincing standard of proof to all SDP factors, in the face of the state’s argument to the contrary. Id. at 180. The supreme court did not extend this requirement to SPP commitments. In fact, it was unnecessary to do so because the court had recently addressed the relevant, standard, stating “the burden is on the state to prove by clear and convincing evidence, each of the three elements set out in Pearson.” In re Linehan, 518 N.W.2d 609, 610 (Minn.1994). The court further clarified the standard for the dangerousness showing in a psychopathic personality commitment case, listing factors that the district court could consider in predicting “serious danger to the public.” Id. at 614; see Linehan, 557 N.W.2d at 189 (same factors should. be considered in determining dangerousness in SDP commitment). Appellants make no claim that the district courts did not apply the clear and convincing .standard, and their argument has no merit.

4. SPP Commitment: Double Jeopardy

Appellants argue that their commitments violate the prohibition against double jeopardy. See Hendricks, 117 5.Ct. at 2086 (upholding Kansas law against double jeopardy challenge). The Minnesota Supreme Court has held that an SPP commitment does not constitute double jeopardy because it is for purposes of treatment, not preventive detention. Call, 535 N.W.2d at 319-20; see Caprice, 552 N.W.2d at 759 (also rejecting double jeopardy claim).

Appellants nonetheless contend that the SPP statute is punitive, based on several statutes that may affect those who are committed thereunder. First, appellants contend that persons. committed as SPP are not considered vulnerable adults under MinmStat. § 626.557 (1998) (providing for reporting of maltreatment of vulnerable adults). A “vulnerable adult,” however, may include a person committed as an SPP or SDP if the person has a physical or mental infirmity or dysfunction impairing his ability to care for himself and to protect himself from maltreatment. Minn. Stat. § 626.5572, subd. 21(2), (4) (1998).

Appellants also cite Minn.Stat. § 201.15, subd. 1(c) (Supp.1997), which at one time provided that persons adjudged an SDP or SPP were ineligible to vote. Appellants acknowledge, however, that in the 1998 legislative session the legislature repealed this language. 1998 Minn. Laws ch. 376, § 1. The legislature at the same time amended Minn.Stat. § 609.165, subd. lc, to state:

Notwithstanding subdivision 1, a person who has been deprived of civil rights by reason of conviction of a crime is not restored to civil rights as long as the person remains civilly committed under chapter 253B or Minnesota Statutes 1992, section 526.10, based in whole or in part on the same conduct as caused the person to be convicted of the crime.

1998 Minn. Laws ch. 376, § 5. Appellants acknowledge that the new law does not disenfranchise them.

Appellants further contend that if a person is committed as an SPP after being consigned to the corrections department, the person is denied treatment as an SPP until he first completes the sentence in a facility designated by the corrections commissioner. MinmStat. § 253B.185, subd. 2(b) (1998). After the person has finished the sentence, the person then shall be transferred to a regional center designated by the human services department. Id.; cf. Minn.Stat. § 241.69, subd. 4 (1998) (if mentally ill prisoner is committed, court may commit person to psychiatric unit in correctional facility .or to another hospital). This procedure does not render the commitment statute punitive; had the person not been committed, he still would have had to serve time in the correctional facility.

We conclude that while some of these statutory provisions may affect those committed under the SPP statute, appellants have not shown any reason that the provisions render the commitment statute punitive.

5. Respondent’s Motion to Strike

Finally, respondent moves to strike material contained in Mattson’s and Caprice’s appendices, contending that they contain material not part of the habeas record. The challenged items are the commitment petitions and reports and transcripts, apparently from the commitment proceedings. Mattson and Caprice have not responded to this motion.

Generally, an appellate court may not consider matters not received in evidence below. Thiele v. Stick, 425 N.W.2d 580, 582-83 (Minn.1988); see Minn. R. Civ. App. P. 110.01 (providing record on appeal consists of papers filed in trial court, exhibits, and transcripts). Upon proper motion, we will strike material contained in the appendix that was not presented to the district court. Fluoroware, Inc. v. Chubb Group of Ins. Companies, 545 N.W.2d 678, 684 (Minn.App.1996).

A review of the district court record shows that with one exception, none of the challenged material is contained in the district court record for the habeas proceeding. That exception is a May 7, 1993, report by R. Owen Nelson, found in Caprice’s appendix. This report was in the appendix of respondent’s memorandum to the district court and thus would properly be included on appeal. We strike the remaining material from the record on appeal.

DECISION

The decisions of the district courts denying the petitions for a writ of habeas corpus are affirmed. Respondent’s motion to strike is granted in part and denied in part.

Affirmed; motion granted in part and denied in part.