This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






In Re the Matter of Roger James Berry.


Filed March 27, 2001


Peterson, Judge


Redwood County District Court

File No. P59600006

Supreme Court Appeal Panel

File No. 190-A


Robert A. Gibson, 101 Hickory Street East, PO Box 1056, Mankato, MN  56002-1056 (for appellant)


Mike Hatch, Attorney General, Kathy Meade Hebert, Assistant Attorney General, Suite 900, 445 Minnesota Street, St. Paul, MN  55101; and


Michelle Dietrich, Redwood County Attorney, Nathan Crowe, Assistant County Attorney, PO Box 130, Redwood Falls, MN  56283-0130 (for respondent)


            Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D    O P I N I O N



            Appellant Roger James Berry was committed for an indeterminate period to the Minnesota Security Hospital as mentally ill and dangerous.  He petitioned the Commissioner of Human Services for a provisional or a full discharge or, alternatively, for transfer to an open hospital. The commissioner denied the discharge request but ordered Berry’s transfer to an open hospital.   Berry petitioned for review by the judicial appeal panel, challenging only the denial of his request for a full discharge.  The panel denied his petition. Berry argues on appeal that he produced sufficient evidence to sustain findings that he meets the standards for a full discharge.  He also argues that the order violates his right to due process.  We affirm.          


Berry has a history of violent behavior, including two convictions for assaulting his wife and one conviction for making terrorist threats against his wife.  In 1995, Berry attacked his wife in front of their two children.  He beat her, shoved her head into a dresser, and stabbed and cut her, nearly severing her index finger. Berry was charged with attempted first-degree murder, attempted second-degree murder, first-degree assault, second-degree assault, and terroristic threats. He submitted to a mental competency evaluation pursuant to Minn. R. Crim. P. 20 and asserted the affirmative defense of not guilty by reason of mental illness. 

In January 1996, Redwood County began a civil commitment proceeding in lieu of prosecuting Berry on criminal charges. The district court found Berry mentally ill and dangerous to the public and committed him to the Minnesota Security Hospital.  After a 60-day review, the court committed Berry for an indeterminate period.

In 1998, Berry petitioned the Commissioner of Human Services for a full discharge from his commitment.  Based on the recommendation of a special review board, the commissioner denied Berry’s petition because he had refused to participate in any form of therapy. The supreme court appeal panel affirmed the commissioner’s decision. The panel found that Berry had no insight into his chemical addiction and that he was at “serious risk of returning to drug and alcohol use and exacerbating his mental illness.”

In August 1999, Berry entered an intensive six-week chemical-dependency program.  After completing the program, he participated in a six-month aftercare plan designed to lead to his transfer to an open hospital.  After completing the aftercare plan, Berry filed the petition for a full or provisional discharge or, alternatively, for transfer to an open hospital that is the subject of this appeal. 


1.                  Under Minn. Stat. § 253B.18, subd. 15 (1998):

A mentally ill and dangerous patient shall not be discharged unless it appears to the satisfaction of the commissioner, after a hearing and a favorable recommendation by a majority of the special review board, that 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 inpatient treatment and supervision.


In determining whether a discharge shall be recommended, the special review board and commissioner shall consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the patient in adjusting to the community.  If the desired conditions do not exist, the discharge shall not be granted.


            A person

committed as mentally ill and dangerous to the public * * * may petition the [judicial] appeal panel for a rehearing and reconsideration of a decision by the commissioner.


Minn. Stat. § 253B.19, subd. 2 (1998). 

            In reviewing a decision of the appeal panel, the appellate court

is not to weigh the evidence as if trying the matter de novo, but to determine from an examination of the record if the evidence as a whole sustains the appeal panel’s findings.  If it does so, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.


Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992) (quotation omitted), review denied (Minn. Nov. 17, 1992).

In the order affirming the denial of Berry’s petition for full discharge, the appeal panel found that for a long period of time, Berry did not participate in treatment, but that he was currently actively involved in treatment.  The panel also found that 

there still appears to be a risk of [Berry] returning to drug and alcohol use and causing a resurgence of his mental illness, which is now in remission.  A sufficient amount of time must pass in an open hospital setting to determine whether or not the treatment received and accepted by [Berry] has given [him] sufficient insight into his condition to allow him to maintain abstinence and sobriety.


The panel found that there was insufficient support on the record for a full discharge and explained:

Until [Berry] has demonstrated for a sufficient period of time that he has gained insight into his condition and the strength to pursue his goal, he still represents a danger to the public.


Citing the testimony of doctors who testified before the appeal panel, Berry argues that he produced sufficient evidence to sustain findings that he is capable of making an acceptable adjustment to open society, that he is no longer dangerous to the public, and that he is no longer in need of inpatient treatment and supervision.  It is correct that Dr. John Patrick Cronin testified that Berry was capable of making an acceptable adjustment to open society, is not a danger to the public or himself, and is not in need of inpatient treatment and supervision any longer.

But Dr. John K. Kluznick, Senior Staff Psychiatrist at the Minnesota Security Hospital, recommended at the hearing before the appeal panel that Berry have a period of transition to an open hospital before full discharge.  When asked if Berry was capable of making an acceptable adjustment to open society, Kluznick answered, “I don’t know that.  It would depend on his sobriety.  If he is sober, yes, he could.”  When asked if Berry is a danger to the public today, Kluznick responded, “Sitting here, he is not a danger.  He is a danger if he has a relapse.”  When asked if he is still in need of inpatient treatment and supervision, Kluznick stated that Berry never needed treatment for a psychiatric disorder, except for chemical dependency. Kluznick also testified that transfer to an open hospital would provide Berry with a “smoother and supervised transition into the community.” Kluznick stated that he could not recommend a full discharge because, “[g]iven the nature of [Berry’s] commitment and the risk of his returning to violence with the use of chemicals, I think he needs supervision.” Kluznik testified:

I can say if he relapses and returns to intoxicants, that he is going to be in serious trouble in terms of relapse into psychosis and risk of violence at that time.


Furthermore, Cronin testified that he supported Berry’s discharge if Berry would comply with the terms and conditions listed in a plan proposed by Larry Hensrud, director of the mental health and chemical health services at the Lower Sioux Indian Community Reservation, the community where Berry planned to live after being discharged.  Berry testified that he would participate in all the activities and programs Hensrud listed, but he also insisted that he would not consider a provisional discharge with those activities and programs as conditions for his discharge.  Berry did not want any strings attached to his discharge because it would seem like probation. 

            Although the record contains testimony that supports Berry’s petition for discharge, the testimony of the expert witnesses and the record as a whole sustain the appeal panel’s findings that until Berry spends enough time in an open hospital setting to determine whether treatment has given him sufficient insight into his condition to allow him to maintain abstinence and sobriety, he is still a danger to the public.  Berry has a history of violence brought on by his use of chemicals.  Despite participating in eight treatment programs, he never remained sober for more than four months at a time before his commitment.  Even if his prospects for success are favorable, success has not been demonstrated.

2.         Berry argues that because there is no evidence that he is currently mentally ill or a danger to himself and he is not prescribed medication for a mental illness, the state is violating his due-process rights by continuing his confinement.

The supreme court has held that “Minn. Stat. § 253B.18, subd. 15, * * * comports with due process under both the federal and state constitutions.” Lidberg v. Steffen, 514 N.W.2d 779, 783 (Minn. 1994).  The supreme court explained in Lidberg:

Gradually reintegrating respondent into society through the use of the provisional discharge procedures allows him to demonstrate that he can successfully adjust to open society while allowing the County to provide for the public’s safety through monitoring his progress and providing needed services.  As he adjusts to each less restrictive living arrangement, respondent will establish his ability to live in open society and at the same time alleviate the public safety concerns which resulted in his initial commitment.



            The court further explained:

The existence of the provisional discharge procedures is critical to our result under any level of scrutiny.  These procedures are better suited to a determination of the capability of a person who has been committed as MI & D [mentally ill and dangerous] for living in open society than formal adversarial procedures initiated solely by the passage of time.  The provisional discharge procedures do, in a sense, place the burden of proving the MI & D designation no longer applies on the person committed, but that burden is one the patient meets by successfully adjusting to living situations that gradually afford greater personal liberty.


Id. at 784.

            We find no basis for concluding that Berry’s due-process rights were violated when his request for a full discharge was denied.