This opinion will be unpublished and

may not be cited except as provided by

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






Wayne Nicolaison,





Michael O’Keefe,

Commissioner of Human Services,



Filed September 18, 2001


Gordon W. Shumaker, Judge


Judicial Appeal Panel

File No. 147-B




James S. Dahlquist, 270 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN  55415 (for appellant)


Mike Hatch, Attorney General, David A. Rowley, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Human Services)


Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent Hennepin County)




            Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant, who was committed for an indeterminate period as a psychopathic personality, challenges a decision by the judicial appeal panel upholding the denial of his petition for discharge from his commitment.  He contends that the evidence before the panel supported his petition for discharge.  We affirm.


            Appellant has a history of violent sexual behavior.  In November 1980, he entered a woman’s residence and repeatedly sexually assaulted her at knifepoint for three hours.  In 1984, five months after being paroled for the 1980 offense, appellant assaulted a woman on the street.  She was able to escape.  In October 1984, he repeatedly raped another woman at knifepoint and threatened to kill her.  While incarcerated, appellant refused to participate in sex-offender treatment, and he was disciplined many times for harassing female staff members.

            In 1992, the district court committed appellant as a psychopathic personality.  During his commitment, he has declined to participate in sex-offender treatment.

            Appellant petitioned a special review board for discharge from his commitment, but the board denied his petition.  He then petitioned a judicial appeal panel for rehearing and reconsideration.  He acknowledged that his hearing on that petition had been delayed because staff discovered almost 9,000 sexually explicit images on his computer.  While denying he had accumulated that many images, he explained that he and a friend had planned to sell computer presentations with these images, entitled “PP Club Presentations.”  He stated that “PP” stands for Psychopathic Personality.  Appellant testified that he has not engaged in any treatment for sex offenders since his commitment in 1992 because he does not need sex-offender treatment.  He also asserted that he is not chemically dependent.  Appellant testified that he would not reoffend if discharged and that he believes that if he did so, he would be sentenced to prison for the rest of his life.  He expressed the desire to obtain meaningful employment upon his release.

            Dr. John Austin, a licensed psychologist, diagnosed appellant with alcohol dependence, sustained full remission in a controlled environment, and personality disorder, not otherwise specified, with antisocial and narcissistic features.  Dr. Austin described several factors that would tend to lower appellant’s risk of reoffense, including his age of 50, the relative stability of his life while incarcerated and committed, his relatively late start in committing sex offenses, and the fact that he is a rapist rather than a pedophile.  Although he initially believed that appellant showed no signs of sexual preoccupation, the discovery of the sexually explicit material on appellant’s computer caused Dr. Austin to change that opinion.  Dr. Austin acknowledged that appellant did not express any remorse for his sexual assaults and instead felt that he had paid his debt to society.  He also acknowledged that appellant has consistently refused to participate in sex-offender treatment.  Dr. Austin declined to offer an opinion as to whether appellant’s commitment should be continued.

            The commissioner then moved to dismiss the petition in accordance with Minn. R. Civ. P. 41.02(b), arguing that appellant failed to present a prima facie case because he did not present any evidence on the statutory discharge criteria.  The judicial appeal panel affirmed the order of the commissioner denying the petition for discharge, and this appeal followed.


            Findings made by the appeal panel in an involuntary dismissal under Minn. R. Civ. P. 41.02(b) are reviewed under a standard that requires us to determine whether the findings are clearly erroneous.  Fid. Bank & Trust Co. v. Fitzimons, 261 N.W.2d 586, 588 n.5 (Minn. 1977).  Issues of law are reviewed de novo.  State v. St. Paul Fire & Marine Ins. Co., 434 N.W.2d 6, 8 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).

            Appellant was committed for an indeterminate period as a psychopathic personality in 1992.[1]  The party seeking discharge from commitment bears the initial burden of establishing a prima facie case for discharge.  Minn. Stat. § 253B.19, subd. 2 (2000); Caprice v. Gomez, 552 N.W.2d 753, 758 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  The statutory criteria for discharge, found at Minn. Stat. § 253B.18, subd. 15 (2000), apply to psychopathic personality commitments.  Call v. Gomez, 535 N.W.2d 312, 318 (Minn. 1995).  There may be no discharge except on a showing 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.


Minn. Stat. § 253B.18, subd. 15.  A slight change or improvement does not mandate discharge, so long as the person continues to need treatment and to pose a danger to the public.  Call, 535 N.W.2d at 319.

            Appellant contends that he made a prima facie showing that he met the criteria for discharge, citing his own testimony to show that he does not currently meet the criteria for civil commitment, does not need treatment, and is capable of making a normal adjustment back into society without the danger of reoffending.  Appellant contends that because his testimony was unrebutted, and because Dr. Austin’s testimony was not determinative, the district court erred in granting the commissioner’s motion to dismiss.

            We disagree and expressly reject appellant’s claim that his unrebutted testimony is sufficient to establish a prima facie case.  The appeal panel found that appellant showed no insight into his condition and continues to refuse testing and treatment.  Further, staff members did not support his petition for discharge.  The panel determined that appellant failed to establish a prima facie case showing he meets the discharge criteria.  The panel also found that he needs further treatment and that he continues to require placement at a secure facility for the safety of himself and the public and to meet his treatment needs.  The appeal panel’s findings are supported by the record and are not clearly erroneous.


[1]  In 1994, the legislature changed the term “psychopathic personality” to “sexual psychopathic personality.”  1994 Minn. Laws 1st Spec. Sess. ch. 1, art. I, § 2.  This was not intended to affect the substance of the law.  Id., § 5(a).  Thus, the terms are used interchangeably.