Opinion
No. C0-96-286.
Filed June 25, 1996.
Appeal from the Judicial Appeal Panel File No. 144.
James W. Brandt, (for Appellant)
Hubert H. Humphrey, III, Minnesota Attorney General, Steven J. Lokensgard, Assistant Attorney General, (for Respondent Commissioner of Human Services)
Earl E. Maus, Cass County Attorney, (for Respondent Cass County)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994)
Unpublished Opinion
On appeal from a decision by the judicial appeal panel, appellant Emery E. Bush claims he should have been discharged from his indeterminate commitment as a psychopathic personality. He also argues his continued confinement constitutes double jeopardy. We affirm.
Facts
Appellant Emery Bush is a 50-year-old man who has spent 24 years in prison. In addition to the crimes of grand larceny, unauthorized use of a vehicle, assault, burglary, and arson in the third degree, Bush has been convicted of sexually dangerous acts. In May 1970, when Bush was 24 years old, he was convicted of sexual intercourse with a 13-year-old child. After serving an 18-month prison sentence, Bush was released to a halfway house. He escaped, and one month later he crawled into a parked car and threatened a 16-year-old girl with a knife. Based on this incident, his parole was revoked. After being released, Bush was convicted in 1974 of false imprisonment for restraining a girl, and served a 27-month prison sentence for that offense. In April 1978, Bush was convicted of criminal sexual conduct in the third degree, for which he served six and one-half years in prison. Three days after being released to a halfway house in 1983, Bush escaped and some ten days later raped a woman. Bush was convicted of criminal sexual conduct in the first degree for that offense.
Bush was committed for an indeterminate period to the Minnesota Security Hospital as a psychopathic personality in January 1993. By May 1994, he petitioned for discharge. After the Commissioner of Human Services denied the petition based on the recommendation by the special review board, Bush petitioned a three-judge appeal panel for rehearing and reconsideration.
At the hearing, Dr. Michael Millard, a psychologist, diagnosed Bush with chemical dependency and an antisocial personality disorder. Bush has not developed a relapse prevention plan or acknowledged he needs chemical dependency treatment. Dr. Millard explained Bush must be treated for chemical dependency before the source of his antisocial behavior can be determined. Without inpatient treatment for chemical dependency, he would not be able to adjust to open society and continues to be a danger to others in the "mixed picture" that is present because of the chemical dependency. There was no convincing evidence Bush would no longer act out.
Bush testified that he knows using alcohol caused him trouble in the past, but explained he would not be dangerous if released because he would no longer drink. Instead, he would enter chemical dependency treatment, attend AA, and obtain a job. He has refused to participate in sex offender treatment while at the hospital, and claims that chemical dependency treatment has "not really" been offered to him.
After this testimony, the Commissioner moved to dismiss because Bush did not establish a prima facie case establishing that he met all three of the discharge criteria. Bush contended that he set forth a prima facie case for provisional discharge to Fergus Falls Regional Treatment Center for chemical dependency treatment, and that there was no evidence he continues to be in need of sex offender treatment.
The appeal panel granted the Commissioner's motion. Emery Bush appeals.
Decision
A person who seeks discharge from commitment as a psychopathic personality must follow the procedures outlined in Minn. Stat. § 253B.18 (1994). See Minn. Stat. § 253B.185, subd. 1 (1994) (unless otherwise specified, provisions relating to commitment as mentally ill and dangerous apply to commitment as a psychopathic personality); Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995) (discharge criteria in Minn. Stat. § 253B.18, subd. 15, apply to psychopathic personality commitment).
When the Commissioner of Human Services denied Bush's petition for discharge, Bush asked the judicial appeal panel for rehearing and reconsideration of the decision. Minn. Stat. § 253B.19, subd. 2 (1994). At the hearing before the judicial appeal panel, the petitioning party, in this case Bush, "bears the burden of going forward with the evidence." Id. "The party opposing discharge bears the burden of proof by clear and convincing evidence that the [patient] is in need of commitment." Id. The factors the judicial appeal panel considers in determining whether the person should be discharged are whether
the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of in-patient treatment and supervision.
Minn. Stat. § 253B.18, subd. 15; Call, 535 N.W.2d at 319.
The appeal panel here found that Bush failed to establish a prima facie case that a change had occurred in his condition entitling him to release, which would permit the hearing to go forward. See Minn. Stat. ___ B.19 subd. 2. It cited the relevant statutory factors in section 253B.18, subd. 15, and stated that the only testimony Bush presented was by Dr. Millard, who opined that Bush has changed very little since his initial commitment. The panel stated that it was without jurisdiction to review Bush's commitment and that Bush was precluded from challenging the commitment in a discharge proceeding.
Bush argues he is entitled to discharge, contending his commitment was not justified because the state never established he had an identifiable sexual disorder. See Minn. Stat. § 253B.02, subd. 18a (1994) (current definition of sexual psychopathic personality); State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd, 309 U.S. 270, 60 S.Ct. 523 (1940) (requiring habitual course of misconduct in sexual matters, evidencing an utter lack of power to control sexual impulses and "likely to attract or otherwise inflict injury, loss, pain or other evil on objects of their uncontrolled or uncontrollable desire"). He argues that, consequently, his commitment does not bear a reasonable relation to the original purpose for the commitment, and he must be discharged. See Call, 535 N.W.2d at 319 (continued commitment justified so long as person continues to need inpatient treatment
and supervision for sexual disorder and poses danger to public). We disagree.
The supreme court has held that the statutory criteria set forth in section 253B.18, subdivision 15, apply in a psychopathic personality discharge proceeding. Call, 535 N.W.2d at 318. Here, as the appeal panel found, Bush failed to establish this prima facie case by showing these factors were met. The request for reconsideration was properly denied. Bush may not challenge the merits of his commitment in the discharge proceeding. See id. at 318-19.
Bush next argues that his continued confinement constitutes double jeopardy. We disagree. The supreme court has held that commitment under the psychopathic personality statute is remedial because it is for treatment and thus does not constitute double jeopardy. Id. at 320.
Affirmed.