This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Harold L. Monson,





Michael O’Keefe,

Commissioner of Human Services,



Filed April 11, 2000


Lansing, Judge


Hennepin County District Court

File No. 142-A



Ronald L. Thorsett, 7328 Ontario Boulevard, Eden Prairie, MN 55346 (for appellant)


Mike Hatch, Attorney General, David A. Rowley, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55155 (for respondent state)


Amy Klobuchar, Hennepin County Attorney, Louis R. Mande, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County)


Michael O’Keefe, Commissioner, Minnesota Department of Human Services, 444 Lafayette Road, St. Paul, MN 55155 (respondent)


            Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


The Commissioner of Human Services denied Harold Monson’s petition for discharge from indeterminate commitment as a psychopathic personality.  On rehearing, the judicial appeal panel affirmed the commissioner’s denial, and Monson appeals.  Because Monson failed to meet his statutory burden to present a prima facie case for discharge, we affirm.


            Following Harold Monson’s 1990 conviction for multiple acts of criminal sexual conduct, the district court committed him to the Minnesota Security Hospital for an indefinite period as a sexual psychopathic personality.  The court based its commitment on Monson’s long history of sexual abuse of young children and a diagnosis of pedophilia and alcoholism.  His commitment was upheld on appeal.  In re Monson, 478 N.W.2d 785, 789-90 (Minn. App. 1991).

In 1999, Monson petitioned the Commissioner of Human Services under Minn. Stat. § 253B.18, subd. 5 (1998), for discharge or transfer.  The commissioner, relying on the recommendation of the special review board, denied Monson’s petition.  Monson petitioned the judicial appeal panel for rehearing and reconsideration.

At the hearing before the judicial appeal panel, Monson testified that he no longer suffered from pedophilia, that his thoughts and behaviors had changed, and that, motivated by the threat of future incarceration, he would be able to control his behavior.  He also testified that his alcoholism, currently in remission, had contributed to his inability to control his behavior and that substance-abuse issues would not be a problem if he were discharged.  He urged the judicial appeal panel to consider that because he was 72 years old, he should be permitted a chance to show that he could make an acceptable adjustment to society.  After the close of Monson’s case, the Commissioner of Human Services and Hennepin County moved to dismiss the petition, arguing that Monson had failed to establish a prima facie case for discharge.

The judicial appeal panel issued written findings and an order affirming the denial of Monson’s discharge petition.  The panel found that Monson had not successfully completed any program for treatment of his illness, had demonstrated little insight into his illness or the crimes that preceded his commitment, had provided no plan for his future if he obtained a discharge, and had presented no professional support for his discharge request.  On these findings, the judicial appeal panel concluded that Monson represented a present danger to himself and others and was incapable of making an acceptable adjustment to society.  Monson appeals, arguing that he presented a prima facie case that he is no longer in need of inpatient treatment and does not pose a danger to himself or others.


            A petition for discharge from commitment as a psychopathic personality will be granted only if the petitioner “is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.”  Minn. Stat. § 253B.18, subd. 15 (1998) (listing criteria for discharge of persons committed as mentally ill and dangerous; Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995) (holding that criteria for persons committed as mentally ill and dangerous also apply to persons committed as psychopathic personalities).  On rehearing after the commissioner’s denial of a discharge petition, the party seeking discharge bears the initial burden of presenting evidence to the judicial appeal panel that establishes a prima facie case for discharge.  Minn. Stat. § 253B.19, subd. 2 (1998); Caprice v. Gomez, 552 N.W.2d 753, 758 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  The party opposing discharge then bears the burden of proof, by clear and convincing evidence, that the petitioner is in need of commitment.  Minn. Stat. § 253B.19, subd. 2.

If the judicial appeal panel grants a motion to dismiss for failure to present a prima facie case, the decision constitutes an involuntary dismissal of the petition for failure to show a right to relief.  See Minn. R. Civ. P. 41.02(b) (court may dismiss at close of claimant’s evidentiary presentation when, on facts and law, claimant has failed to demonstrate right to relief).  In an action tried without a jury, the rules provide that the court may make findings of fact as described in Minn. R. Civ. P. 52.01 and render judgment.  Minn. R. Civ. P. 41.02(b).  Findings made pursuant to rule 41.02(b) are accorded the same deference as findings under rule 52.01 and will not be set aside unless clearly erroneous.  Fidelity Bank & Trust Co. v. Fitzimons, 261 N.W.2d 586, 588-89 & n.5 (Minn. 1977), review denied (Minn. Jan. 27, 1994); Poured Concrete Foundations, Inc. v. Andron, Inc., 507 N.W.2d 888, 891 (Minn. App. 1993).

Monson maintains that, at the hearing before the judicial appeal panel, he demonstrated that (1) he does not require treatment for his pedophilia and (2) that he would not pose a danger to the public if he were discharged.  See Call, 535 N.W.2d at 319 (listing no need for inpatient treatment and no danger to public as two basic requirements of discharge criteria).  We disagree.

The record indicates virtually no change in Monson’s circumstances since his 1990 commitment.  Monson is resistant to treatment, has not successfully completed any sexual-offender treatment program, and is not currently in a treatment program.  Neither has Monson successfully completed nor participated in a program to address his alcoholism.  The judicial appeal panel found that Monson demonstrates “little if any insight” into his illness or his crimes.  At the time of his commitment, Monson failed to accept full responsibility for his actions and was unwilling to avail himself of treatment.  See Monson, 478 N.W.2d at 787-88, 789.  The record demonstrates the same denial, minimization, and lack of appreciation for the seriousness of his pedophilia or the consequences of his behavior that were apparent at the time of his commitment.  See id.  For instance, when asked whether he touched any children in his garage, he responded that he “may have.”  Referring to his conviction, Monson commented, “Everybody makes mistakes.”  Although his hospitalization has limited his capacity to act and has also brought about a remission in his alcoholism, his testimony demonstrates no other change that would diminish his need for inpatient supervision and treatment.  See Call, 535 N.W.2d at 319 (noting that slight improvement is insufficient to justify discharge).

Monson admitted that alcoholism had been a major factor in his past behavior.  He also admitted that he had a drinking problem.  Although he claims he no longer has this problem, he acknowledged that if he began to crave alcohol, he does not have any plan for seeking help.  Given that Monson attributed many of his past behavioral problems to his alcohol usage, his refusal to acknowledge the seriousness of his alcoholism or to attempt to address it shows no progress from the circumstances that caused his commitment.

The judicial appeal panel also found that Monson is a danger to himself and others.  Monson said that his thinking on children had changed and that “I might be attracted, but I don’t think I would have a problem to force myself on anyone or do anything harmful to anyone.”  But Monson has submitted no evidence that “specific conditions exist to provide a reasonable degree of protection to the public” or that he could make an acceptable adjustment to the community.  See Minn. Stat. § 253B.18, subd. 15.  Monson plans to return to the same residence where he committed the offenses, he has not identified any specific outpatient treatment programs that he would pursue, and he has shown no change in his inability to distinguish between appropriate and inappropriate behavior.  Under these circumstances, we cannot agree that he does not pose a danger to the public.

A petitioner must do more than merely file a petition to establish a prima facie case for discharge.  Caprice, 552 N.W.2d at 758.  Although Monson presented his own sworn testimony in addition to his petition, that testimony indicated that he continues to need inpatient supervision and, without it, he is at risk of reoffending.  Monson had a duty to go forward with evidence demonstrating that he met the statutory criteria.  Caprice, 552 N.W.2d at 757-58 (discussing petitioner’s burden of production in petition for discharge).  He failed to meet that burden.  The record sustains the findings of the judicial appeal panel that Monson is a danger to himself and others, would not be able to make an acceptable adjustment to society, and continues to require inpatient treatment and supervision.