This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
In the Matter of the Civil Commitment of:
Gregg Lynn Bartholomay.
Nicollet County District Court
File No. P8-00-554
Christopher P. Rosengren, Gislason & Hunter, L.L.P., 424 North Riverfront Drive, Suite 250, P.O. Box 4157, Mankato, MN 56002-4157 (for appellant)
Mike Hatch, Attorney General, Angela M. Helseth, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Michael K. Riley, Sr., Nicollet County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Appellant challenges his indeterminate commitment as a sexually dangerous person (SDP) on the ground that Minn. Stat. § 253B.185, subd. 1b (2000), which permits disclosure of private medical records to a county attorney considering commitment of the person as an SDP or sexual psychopathic personality (SPP), is unconstitutional. Appellant contends that the statute (1) violates substantive due process because it allows access to records without a preliminary showing that the person is subject to commitment, (2) violates the separation of powers clause, and (3) must be construed to require that the commitment petition be filed and that any requested records be provided first to the court and to the individual before the county attorney. Because we conclude that the statute, as applied to this appellant, is constitutional, we affirm.
In March 1998, appellant was convicted of second-degree criminal sexual conduct for the sexual abuse of a nine-year-old boy. Appellant received a 42-month stayed sentence and was placed on probation with various conditions, including completion of a sex-offender program. In addition, appellant pleaded guilty to two counts of possession of pictorial representations of minors after police found hundreds of pictures of naked children and over 30 pictures of juvenile males on appellant’s computer. On these counts, the court ordered appellant to serve 365 days in the county jail and placed him on supervised probation for 24 months. In September 1999, the district court revoked the stay of execution and committed appellant to prison for 42 months after appellant violated the terms of his probation. Specifically, appellant failed to comply with the sex-offender evaluation recommendations, resulting in his discharge from the sex-offender program for cause.
In June 2000, while appellant remained incarcerated, Scott Johnson, Civil Commitment Referral Coordinator with the Minnesota Department of Corrections (DOC), conducted a civil commitment assessment of appellant as required by Minn. Stat. § 244.05, subd. 7 (2000). Johnson met with appellant and informed appellant that he would use information obtained from the assessment to complete his report, that he would discuss the report and recommendations with the referral team, and that the team would decide whether appellant’s case would be referred to the county attorney’s office for a petition for commitment as an SDP and/or SPP. Johnson explained to appellant that appellant’s participation was voluntary and appellant signed an informed-consent form.
As part of the assessment, Johnson conducted a clinical interview with appellant. During that interview, appellant estimated that he had 26 victims “at the most.” Appellant stated that he was sexually attracted to males aged infant to 12 and that he preferred children to adults. Appellant stated that he found victims through babysitting jobs. When discussing his risk for reoffending, appellant stated that he will always pose a risk, but that he would utilize support people and intervention. Johnson noted that appellant failed to demonstrate any signs of remorse in the discussion of his sexual offenses and appeared calm and unaffected by the assessment.
A pre-sentence investigation report indicated that appellant reported that police in another state investigated him in 1991 for sexually molesting a three-and-a-half-year-old boy. During Johnson’s interview, appellant admitted that he sexually molested that boy and an eight-year-old boy at about the same time period.
At the time of sentencing, the district court ordered appellant to participate in the CORE Psychological Services program as a result of his conviction for second-degree criminal sexual conduct. Appellant entered the CORE program in 1998, but was terminated in September 1999 for failing to comply with the program’s recommendations. The report showed that appellant admitted having 28 child victims. Appellant’s conduct included fondling the children’s genitalia, performing fellatio and cunnilingus on the children, masturbating himself against the children, inserting a vibrator into the rectums of several children, having children urinate on him for sexual arousal, videotaping himself sexually abusing the children, sexually assaulting the children while they slept so they would not remember, and choosing preverbal children so they could not tell about the abuse.
Johnson diagnosed appellant with pedophilia, fetishism (involving urine and diapers), and alcohol dependence. The Static-99, an actuarial tool the DOC uses to determine which offenders the DOC refers for possible commitment, showed that appellant had a score of 5, indicating he was in a medium-high category for risk for reoffense. Johnson determined that appellant was “unable to accept full responsibility” for his sexual behavior, that appellant lacked remorse, and that appellant was “at significant risk” to sexually reoffend. The review committee subsequently recommended that appellant’s case be referred to the Nicollet County Attorney’s Office for possible commitment as an SPP or SDP.
Upon request of the county attorney, the Minnesota Attorney General’s Office (AGO) began the process to seek appellant’s commitment. The AGO moved for production of appellant’s records and data under Minn. Stat. § 253B.185, subd. 1b (2000), which provides that a county attorney, or its designee, may move for an order granting access to records and data “prior to filing a petition for commitment * * * for the purpose of determining whether good cause exists to file a petition.” Although not required by statute, appellant was appointed counsel the same day. Two days later, at the hearing, appellant’s attorney made several objections, including constitutional grounds, to subdivision 1b of the statute. The district court granted the AGO’s motion and ordered production of a substantial list of appellant’s records, including medical and psychological records.
As a result of the motion, the AGO obtained copies of appellant’s medical and psychological records from numerous sources. The records established that appellant sexually abused numerous young children who ranged in age from four months to nine years. Various records indicate that appellant had at least 24 victims and that appellant attempted to obtain a daycare license and a foster-care license in 1997.
In April 2001, the parties entered into a stipulation for appellant’s commitment as an SDP, agreeing that the records produced as a result of the court’s order constituted sufficient evidence for the court to civilly commit appellant but that appellant retained the right to challenge the constitutionality of Minn. Stat. § 253B.185, subd. 1b. The portion of the petition seeking commitment of appellant as an SPP was dismissed without prejudice. The district court ordered appellant committed to the Minnesota Sex Offender Program. This appeal follows.
D E C I S I O N
Appellant challenges the constitutionality of Minn. Stat. § 253B.185, subd. 1b (2000). Appellant argues that the statute is not sufficiently narrow because it can be applied without an initial showing that the person is a candidate for commitment as an SPP or SDP. Appellant also challenges the statute’s application to him, arguing that the state presented no evidence to suggest that he was a candidate for commitment as an SDP.
The constitutionality of a statute is a question of law. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). Thus, this court “is not bound by the lower court’s conclusions.” In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993) (quotation omitted). “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (citation omitted). “The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.” Id. (citation omitted). In determining whether a civil commitment law violates substantive due process, a court subjects the law to strict scrutiny and places the burden on the state to show that the law is narrowly tailored to serve a compelling state interest. In re Linehan, 594 N.W.2d 867, 872 (Minn. 1999). Caselaw establishes, and appellant concedes, that states have a “compelling interest in both protecting the public from sexual violence and rehabilitating the mentally ill.” Id. But, appellant argues that Minn. Stat. § 253B.185, subd. 1b, is not narrowly tailored to meet these objectives.
In 1999, the Minnesota Supreme Court upheld the SDP Act against a substantive due-process challenge. Linehan, 594 N.W.2d at 876. Appellant, however, challenges the constitutionality of the SDP Act as it exists after the 2000 adoption of Minn. Stat. § 253B.185, subd. 1b. Specifically, appellant alleges that Minn. Stat. § 253B.185, subd. 1b, does not sufficiently narrow the class of individuals it targets. Minn. Stat. § 253B.185, subd. 1b, provides for access to data by the county attorney:
Notwithstanding [other statutory sections], prior to filing a petition for commitment as a sexual psychopathic personality or as a sexually dangerous person, and upon notice to the proposed patient, the county attorney or the county attorney’s designee may move the court for an order granting access to any records or data, to the extent it relates to the proposed patient, for the purpose of determining whether good cause exists to file a petition and, if a petition is filed, to support the allegations set forth in the petition.
Moreover, subdivision 1b gives the court discretion to grant the motion if
(1) the department of corrections refers the case for commitment as a sexual psychopathic personality or a sexually dangerous person; or (2) upon a showing that the requested category of data or records may be relevant to the determination by the county attorney or designee.
Id. Thus, under subdivision 1b, a county attorney may obtain records or data before a commitment petition is filed if the DOC refers the case or the county attorney shows the requested category of records may be relevant to the county’s determination. Appellant argues that Minn. Stat. § 253B.185, subd. 1b, allows the county attorney to request medical records without any initial showing that the person targeted is a possible candidate for commitment as an SDP or SPP.
In this case, the DOC was required to make a preliminary determination whether a petition for civil commitment might be appropriate pursuant to Minn. Stat. § 244.05, subd. 7 (2000). As a result of its assessment, the DOC recommended that the county attorney consider appellant for commitment as an SDP or SPP. Minn. Stat. § 253B.185, subd. 1b, provides that a county attorney may move for a court order granting access to an individual’s records for the purpose of determining whether good cause exists to file a petition for civil commitment if one of the following two conditions exist: (1) the DOC refers the case for commitment as an SDP or SPP or (2) upon a showing that the requested records may be relevant to the county attorney’s determination. Because the DOC referred this case, appellant falls under Minn. Stat. § 253B.185, subd. 1b(1).
A party must have standing to challenge the constitutionality of a statute. Generally, one who challenges the constitutionality of a law must show that it is unconstitutional as applied to himself. United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987).
A person to whom a statute may constitutionally be applied has no standing to challenge that statute on the ground that it might conceivably be applied unconstitutionally to others, in other situations not before the court.
State v. Mireles, 619 N.W.2d 558, 561 (Minn. App. 2000) (citing Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 2915 (1973)). Thus, under the general rule, appellant may only challenge the statute as applied to him.
Minnesota cases, however, establish two exceptions to this general rule. The first limited exception is the “Eisenstadt-type exception.” State v. Gray, 413 N.W.2d 107, 112-13 (Minn. 1987) (discussing application of Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972)). The Eisenstadt-type exception grants a party standing to assert the rights of third parties not before the court when the litigation impacts third-party interests and the third parties do not have an “effective avenue of preserving their rights themselves.” Id. Here, persons not before the court will not be directly affected by the outcome of this litigation. In other words, they do not stand to lose anything as a result of this litigation. Additionally, persons not considered a candidate for commitment have an “effective avenue of preserving their rights themselves.” First, Minn. Stat. § 253B.185, subd. 1b, provides that the county attorney may obtain the records after giving the proposed patient notice. Thus, the proposed patient has notice of the motion and an opportunity to argue to the court that disclosure is improper. Second, if the county attorney obtained the records for someone not likely considered a candidate for commitment and the information resulted in a petition for commitment, the person would have standing to challenge the constitutionality of the statute at that time.
The second exception to the general rule that a person may not assert third-party rights involves the First Amendment. See, e.g., Mireles, 619 N.W.2d at 561; Gray, 413 N.W.2d at 113. Since appellant’s challenge is a substantive due-process challenge and not a First Amendment challenge, this exception is not applicable.
We conclude that appellant lacks standing to assert the right of third persons not before this court and that he may only challenge the statute as applied to him. Accordingly, we will only address the due-process constitutionality of Minn. Stat. § 253B.185, subd. 1b, which provides for disclosure of records based upon a DOC referral. We decline to address whether the alternative basis for record production under Minn. Stat. § 253B.185, subd. 1b, is sufficiently narrowly tailored to survive constitutional attack.
Appellant argues that the statute as applied to him is unconstitutional because it is not narrowly tailored and the district court ordered access to the data without any evidence to suggest he was an SDP. As stated, Minn. Stat. § 244.05, subd. 7, requires that the DOC make a preliminary determination of whether, in the DOC’s opinion, a petition for commitment of the person as an SDP or SPP may be appropriate:
Before the commissioner releases from prison any inmate convicted under sections 609.342 to 609.345 or sentenced as a patterned offender under section 609.108, and determined by the commissioner to be in a high risk category, the commissioner shall make a preliminary determination whether, in the commissioner’s opinion, a petition under section 253B.185 may be appropriate.
The statute further requires:
If the commissioner determines that a petition may be appropriate, the commissioner shall forward this determination, along with a summary of the reasons for the determination, to the county attorney in the county where the inmate was convicted no later than 12 months before the inmate’s release date. * * * Upon receiving the commissioner’s preliminary determination, the county attorney shall proceed in the manner provided in section 253B.185. The commissioner shall release to the county attorney all requested documentation maintained by the department.
Id. Here, appellant was convicted of criminal sexual conduct under Minn. Stat. § 609.343. Additionally, the DOC concluded that appellant is in a high-risk category. Thus, appellant falls within the scope of Minn. Stat. § 244.05, subd. 7, and the DOC was required to make a determination before the DOC released appellant. Because Minn. Stat. § 244.05, subd. 7, requires the DOC to conduct a referral assessment and such requirement applies only to inmates convicted of criminal sexual conduct or patterned sex-offender crimes, we find that Minn. Stat. § 253B.185, subd. 1b, which is based upon the DOC referral in Minn. Stat. § 244.05, subd. 7, is sufficiently narrowly tailored to withstand constitutional attack.
The DOC referral and assessment report in this matter contain ample evidence to support the recommendation that appellant be committed as an SDP. During the interview with Johnson, appellant estimated that he had “at the most” 26 victims, stated that he was sexually attracted to males ages infant to about 12, and acknowledged that he preferred children to adults. When discussing his risk for reoffending, appellant stated that he will always pose a risk. The CORE Psychological Services report described appellant’s sexual contact with these victims. Appellant was convicted of second-degree criminal sexual conduct for the sexual abuse of a nine-year-old boy and appellant pleaded guilty to two counts of possession of pictorial representations of minors in 1998. The pre-sentence investigation revealed that appellant admitted that he sexually molested a three-and-a-half-year-old boy and an eight-year-old boy in 1991. The DOC assessment revealed a clear pattern of appellant’s sexual abuse of children. Because we find substantial support in the DOC referral letter and assessment report for the referral of appellant as a possible candidate for commitment as an SDP, we conclude that Minn. Stat. § 253B.185, subd. 1b, withstands constitutional scrutiny as applied to appellant.
Appellant also argues that Minn. Stat. § 253B.185, subd. 1b, violates the separation-of-powers clause. Appellant asserts that the subdivision usurps the original jurisdiction of the court by allowing a DOC recommendation to replace a judicial determination of relevancy.
To challenge the constitutionality of a statute, a party must raise the issue before the lower court and notify the attorney general of the intended challenge in a timely fashion.
Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 137 (Minn. 1999) (citation omitted). By failing to raise the issue and notify the attorney general in a timely manner, the party is deemed to have waived any such challenge. Id. At the hearing for the motion, appellant raised several challenges regarding the constitutionality of the statute, including that the statute was contrary to the doctor/patient privilege, invaded appellant’s right to privacy, violated appellant’s due-process rights under the Fourteenth Amendment, violated appellant’s right to be free from unreasonable searches and seizures under the Fourth Amendment, and violated appellant’s Sixth Amendment right to counsel. Appellant, however, failed to raise the separation-of-powers argument to the district court. Thus, appellant has waived this challenge.
Finally, we reject appellant’s remaining arguments. Appellant argues that Minn. Stat. § 253B.185, subd. 1b, must be construed to include the procedures set forth in In re D.M.C., 331 N.W.2d 236 (Minn. 1983), namely that the petition be filed first and that the records then be provided to the court and to the individual before the state receives them. D.M.C. established the following procedures for post-commitment petition access to medical records for a mental illness commitment proceeding: (1) after a petition is filed, a court order is required to obtain the records; (2) the records are deposited with the court; (3) copies of the records are delivered to the proposed patient or to counsel; and (4) the proposed patient or counsel can request a protective order from the court if the counsel or patient determines that “all or part of the medical records are not relevant and germane to the examination.” Id. at 238-39. But in D.M.C., the court established procedures where the statute failed to do so. In the present case, the procedures are expressly set forth in the statute and the statute is not ambiguous. Thus, we decline to impose the D.M.C. factors on Minn. Stat. § 253B.185, subd. 1b.
Appellant also argues that the importance of the doctor-patient privilege outweighs the policy for releasing records based merely on a showing that the category of records may be relevant. We need not address this argument here because the AGO’s request for appellant’s records was clearly based upon the DOC referral and not on a county attorney’s request based upon relevancy. We recognize, however, that appellant’s argument ignores the broad waiver provision in chapter 253B:
Any privilege otherwise existing between patient and physician, patient and psychologist, patient and examiner, or patient and social worker, is waived * * * with respect to a patient pursuant to any provision of this chapter.
Minn. Stat. § 253B.23, subd. 4 (2000).
 Under Minn. Stat. § 253B.07, subd. 2c (2000), an individual has a right to counsel “at the time a petition for commitment is filed.”
 The AGO asserts that this court should review the statute under the rational-basis standard, arguing that the limited release of records is not a deprivation of liberty. But Linehan established that substantive-due-process challenges for civil commitment cases are reviewed under strict scrutiny. 594 N.W.2d at 872. Moreover, although the act of releasing records may not itself deprive a person of liberty, the purpose for which the records are to be used may result in a deprivation of liberty.
 The county attorney need not give notice under certain circumstances:
Notice to the proposed patient need not be given upon a showing that such notice may result in harm or harassment of interested persons or potential witnesses.
Minn. Stat. § 253B.185, subd. 1b.