This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1410

 

 

In re the Matter of Daniel L. Larsen.

 

 

Filed May 11, 2004

Affirmed

Halbrooks, Judge

 

 

Nicollet County District Court

File No. C0-03-109

 

 

David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant Larsen)

 

Mike Hatch, Attorney General, Angela M. Helseth, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Robert M.A. Johnson, Anoka County Attorney, Paul C. Clabo, Assistant County Attorney, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent state of Minnesota)

 

 

            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Daniel L. Larson, indeterminately committed in 1979 to the Minnesota Security Hospital as a psychopathic personality, challenges the district court’s denial of his petition for a writ of habeas corpus.  Appellant argues that he is entitled to habeas corpus relief because (1) his commitment violates his due process rights; (2) he was denied effective assistance of counsel in his commitment proceedings; and (3) his commitment without a jury trial violated his rights under the Minnesota and United States Constitutions.  We affirm. 

FACTS

            Appellant was born in 1961.  In July and August 1976, delinquency petitions were filed against appellant for exposing himself and for abducting and attempting to rape a nine-year-old girl.  In August 1976, appellant was placed in the custody of Anoka County Social Services; he ran away repeatedly from various children’s homes and shelters and was placed at the Minnesota Security Hospital, where he stayed from October to December 1976.  After completing in-patient treatment at the Fairview Hospital Psychiatric Unit in June 1977, appellant was released to the outpatient program.  Eight days later, he raped a ten-year-old girl.

            A delinquency petition was filed in Anoka County district court.  Following a hearing, the court determined that appellant was mentally ill and that the matter should therefore not be referred for prosecution.  The court ordered the county to file a petition to commit appellant for mental illness and ordered that appellant be detained at the Anoka County Juvenile Center. 

            The county filed a petition to commit appellant as mentally ill and dangerous, and an evidentiary hearing was held on September 27, 1977.  Appellant appeared personally at the hearing and was represented by an attorney who also acted as his guardian ad litem.  The court took testimony from three medical doctors who had treated or examined appellant; the doctors testified that appellant was mentally ill and dangerous and required treatment in a secure and well-controlled setting.  A report filed with the court by one of the doctors stated that appellant suffered from “latent schizophrenia” and was “at least borderline psychotic.”  The court found that appellant was a paranoid schizophrenic with a “severe character disorder,” was mentally ill and dangerous, and ordered appellant immediately committed to the Minnesota Security Hospital at St. Peter.  The commitment order required the hospital superintendent to conduct a review of appellant’s case and file a report within 60 days.

            In the 60-day report filed December 5, 1977, C.G. Sheppard, M.D., who performed psychiatric and psychological evaluations of appellant at the Minnesota Security Hospital, stated that appellant did not appear to meet the statutory criteria for a mentally ill and dangerous person.  Dr. Sheppard stated, however, that appellant did meet the criteria for a psychopathic personality set forth in Minn. Stat. § 526.09 (1976) and recommended that appellant be committed as such to the Minnesota Security Hospital with a final determination by the court.  The district court, without holding an evidentiary hearing, adopted Dr. Sheppard’s recommendation and issued a final order committing appellant for an indeterminate period to the Minnesota Security Hospital as a psychopathic personality. 

            In December 1978, appellant’s attorney and guardian ad litem filed a motion for a hearing on the determination that appellant was a psychopathic personality.  The district court issued an order for a hearing, and in January 1979 the state filed a petition for commitment as a psychopathic personality.  At the June 1979 hearing, appellant appeared with his attorney and guardian ad litem.  Prior to the hearing, the court subpoenaed appellant’s medical records from the security hospital.  The court received written reports and took testimony from William Erickson, M.D., a psychiatric consultant at the security hospital.  The court also took testimony from appellant’s medical expert, Carl Schwartz, M.D., and from the court-appointed examiners, James Gilbertson, M.D., and Ronald Jankowski, M.D.  The transcript of the June 1979 hearing no longer exists, having been destroyed pursuant to standard court-reporting procedure; the hearing record consists of the medical records, including Dr. Erickson’s reports.   

            Appellant’s medical records demonstrate that during his time at the hospital, he was involved in repeated physical altercations with other patients; that he kept other patients awake at night by openly masturbating in the dormitories and wiping semen on other patients; that appellant masturbated during group therapy; that appellant masturbated during meetings with nurses; that appellant exposed himself to other patients; and that appellant admitted to hospital staff that he had committed as many as three rapes for which he was never charged. 

Dr. Erickson reported that in over a year at the hospital (1) appellant had “never been able to get off maximum security rating”; (2) appellant had engaged in sexual conduct with other patients; (3) appellant had exposed himself and masturbated openly in various locations around the hospital; and (4) appellant’s “sexual behavior within the hospital has been exceedingly inappropriate.”  Dr. Erickson stated his assumption that the documented instances of appellant’s aggressive and inappropriate behavior “represent only a fragment of his sexual activity within the hospital.”  The court-appointed examiners, Drs. Gilbertson and Jankowski, testified, respectively, that appellant was a psychopathic personality and that appellant demonstrated “chronic sexual acting out; lack of insight; resist[ance] to treatment [and] repetitive and dangerous sexual activity.”

            The day of the June 1979 hearing, the district court found appellant to be a psychopathic personality, committed him as such to the Minnesota Security Hospital, and ordered the hospital superintendent to issue a review report within 60 days.  In the 60-day report, Dr. Sheppard stated that in light of appellant’s “unwillingness to abide by hospital rules and regulations,” his “pattern of increasingly more dangerous sexual misbehavior in the open community,” his continued sexual acting out at the hospital, and his less-than-satisfactory adjustment to the treatment program, appellant should be “properly committed as a psychopathic personality to a secure hospital setting.”  In August 1979, the district court issued a final determination committing appellant to the Minnesota Security Hospital as a psychopathic personality for an indeterminate period. 

            Appellant did not appeal the district court’s 1977 order on final determination committing him as mentally ill and dangerous or the 1979 order on final determination committing him as a psychopathic personality.

            In 1996, appellant filed a petition for a writ of habeas corpus in federal district court in Minnesota.  Appellant argued that (1) the committing court had violated his due process rights by failing to adhere to constitutional standards for commitment of a person as a psychopathic personality; (2) the assistant county attorney who had filed the commitment petition had engaged in prosecutorial misconduct; and (3) he had received ineffective assistance of counsel during the commitment proceeding.  The court dismissed the petition without prejudice after concluding that appellant had not exhausted his available state remedies by pursuing habeas corpus relief in state court. 

            In 1997, appellant filed a petition for a writ of habeas corpus in the Carlton County district court, arguing that his incarceration was constitutionally void because, among other things, (1) the committing court had violated his due process rights by incarcerating him as a psychopathic personality without specifically applying the criteria for such incarcerations set forth in State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939), aff’d, 309 U.S. 270, 60 S. Ct. 523 (1940), and (2) he had received ineffective assistance of counsel during the commitment proceedings.  The district court denied the petition.  Appellant did not appeal that denial.

            In February 2003, appellant filed a second petition for habeas corpus in Nicollet County district court, arguing that his continuing incarceration violated his constitutional rights because (1) he was denied due process because no petition was filed or hearing held prior to his indefinite commitment as mentally ill in November 1977, and the committing court did not address the Pearson factors in committing him as a psychopathic personality in June 1979; (2) he was committed without a jury trial; and (3) he was denied effective assistance of counsel.  The district court denied the petition.  This appeal follows.      

D E C I S I O N

The writ of habeas corpus is available to challenge the legality of civil commitment and may be used to present both constitutional and jurisdictional challenges.  State ex rel. Anderson v. United States Veterans Hosp., 268 Minn. 213, 217, 128 N.W.2d 710, 714 (1964); Joelson v. O’Keefe, 594 N.W.2d 905, 908 (Minn. App. 1999), review denied (Minn. July 28, 1999); see also Minn. Stat. ch. 589 (2002) (providing procedures for writ of habeas corpus); Minn. Stat. § 253B.23, subd. 5 (2002) (stating that the commitment statute is not intended to abridge right to habeas corpus). 

Historically, the principle of res judicata did not apply to successive habeas corpus proceedings.  Sanders v. United States, 373 U.S. 1, 7-8, 83 S. Ct. 1068, 1072-1073 (1963).  This was primarily because there was no right of review by an appellate court.  See State ex rel. Du Fault v. Utecht, 220 Minn. 431, 450, 19 N.W.2d 706, 714 (1945).  But because Minnesota statutes now provide a right of appeal in habeas corpus proceedings, the doctrine of res judicata may be applied to them.  Id. at 456, 19 N.W.2d at 717.  Therefore, a party who fails to directly appeal the order discharging a habeas corpus proceeding may not seek to relitigate issues that were decided against him in that proceeding by instituting a second habeas proceeding.  Thompson v. Wood, 272 N.W.2d 357, 358 (Minn. 1978); see also State ex rel. Crippen v. Tahash, 274 Minn. 565, 565-66, 143 N.W.2d 383, 384 (1966) (declining to address issues in habeas appeal that had been raised previously); State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959) (holding that a habeas petition may not be filed as a “substitute for a writ of error or appeal or as a cover for a collateral attack upon a judgment”). 

This court gives great weight to the district court’s findings on a petition for habeas corpus, but reviews issues of law de novo.  State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).

As a threshold matter, the state observes that although appellant raises constitutional and procedural challenges to his 1977 commitment proceedings, his current commitment is exclusively pursuant to the 1979 determination that he is a psychopathic personality.  The state argues that insofar as the Commissioner of Human Services (Commissioner), to whose care appellant is committed, does not claim any authority to confine him under the 1977 order, any challenge to that order is irrelevant to this appeal as moot.  We agree, and therefore decline to address as moot appellant’s arguments challenging his 1977 commitment as mentally ill and dangerous.

I.

            Appellant argues that the 1979 commitment violated his constitutional right to due process because the committing court did not specifically address the factors set forth in State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939), aff’d, 309 U.S. 270, 60 S. Ct. 523 (1940), prior to committing him provisionally in June of that year or provide him with notice and hearing before committing him indefinitely in August of that year.  Appellant further contends that he is entitled to habeas corpus relief because hereceived ineffective assistance of counsel in the course of the 1979 commitment hearing.  The district court, in denying appellant’s first petition for a writ of habeas corpus, specifically considered and rejected each of these arguments, and that court’s conclusions as to these issues are therefore res judicata.  Thompson, 272 N.W.2d at 358. 

Appellant also contends that respondent’s failure to file a petition to commit him as a psychopathic personality deprived the district court of subject-matter jurisdiction to hear the case or commit appellant.  See Minn. Stat. § 526.10 (1978) (requiring a petition to begin civil-commitment proceedings).  But the record shows the state did file such a petition in January 1979. 

II.

            Appellant argues that by operation of the Minnesota and United States Constitutions he is entitled to a jury trial prior to his civil commitment.  The state argues that appellant has waived this issue because he did not request a jury trial at the time of his commitment and did not raise the issue on appeal from his commitment.  We agree.

It is true that a civil commitment, which may be terminated by discharge, does not have the same finality as a criminal conviction, which cannot be challenged collaterally on grounds known at the time of direct appeal.  See Minn. Stat. § 253B.15, subds. 1, 9 (2002) (providing that provisional discharge becomes absolute when it expires); cf. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding claims known, as well as raised, at time of direct appeal may not be later raised in postconviction petition).  An appellant who has previously filed a direct appeal from his commitment is therefore not barred from raising a constitutional challenge for the first time in the context of a habeas proceeding because he is not impermissibly attempting to use the habeas proceeding as a substitute for appeal.  Thomas, 255 Minn. at 234, 96 N.W.2d at 257.  But where, as here, the habeas claimant did not file an appeal from his commitment but has previously – and unsuccessfully – asserted a state constitutional right to a jury trial in a habeas proceeding that went unchallenged, he may not now reassert that claim in the context of a subsequent habeas proceeding.  Id.  We therefore conclude that appellant waived this issue by failing to raise it on direct appeal from his commitment and by failing to appeal the district court’s denial of his 1997 habeas petition.

We further observe that even had appellant not waived his assertion of a state constitutional right to a jury trial, we are neither inclined nor empowered to accord him that right in the context of this appeal.  A state constitutional right to a jury trial exists wherever the right existed in the territory of Minnesota at the time the constitution was adopted.  Olson v. Synergistic Tech. Bus. Sys., Inc., 628 N.W.2d 142, 148 (Minn. 2001).  A party is not entitled to a jury trial under the state constitution if “that same type of action did not entitle a party to a jury trial at the time the Minnesota Constitution was adopted.”  Id. at 149.

The supreme court addressed the right to a jury trial in commitment proceedings in Pearson, stating:

If relator has a right to a jury trial, it is because such was provided at common law when our constitution was adopted. While no one has contended that “psychopathic personalities” were confined and treated at common law, the claim has been made that the issue of idiocy was, in early times, decided by a jury.  The other view is that if such ever was the case the practice had been abandoned before our constitution was adopted.  That we are committed to the latter belief appears quite unequivocally from the language of this court in Vinstad v. State Board of Control, 169 Minn. 264, 211 N.W. 12 [(1926)].

 

205 Minn. at 557, 287 N.W. at 303.  Appellant argues that the Pearson court was “misinformed” about the history of state laws and erred in its reliance on Vinstad, and that the legislature “did not have authority” to authorize commitment without a jury trial. 

This court has followed Pearson in Joelson, 594 N.W.2d at 910, and in several recent unpublished decisions.  Moreover, this court, as an intermediate appellate court, is “not in [a] position to overturn established supreme court precedent.”  State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).  We nonetheless take note of a recent law review article exploring the issue and examining the holdings of Pearson and VinstadSee C. Peter Erlinder, Essay: Of Rights Lost and Rights Found: The Coming Restoration of the Right to a Jury Trial in Minnesota Civil Commitment Proceedings, 29 Wm. Mitchell L. Rev. 1269 (2003).

There, Professor Erlinder points out that territorial law, which must define the scope of the jury-trial right guaranteed in the state constitution, provided that, when there was an application to the probate court for appointment of a guardian of a person alleged to be an “insane person or drunkard,” the probate court was to impanel a jury of six persons in the same manner as a jury is impaneled for the trial of civil actions.  Id. at 1277-78; see Minn. Stat. ch. 58, § 23 (1849-58).  The parties dispute whether this guardianship provision establishes a pre-statehood right to a jury trial that was incorporated into the state constitution and applies to a commitment proceeding.  Because Pearson and the principle of stare decisis prevent us from re-examining this issue, we need not further address it.  We note only that the implications of the guardianship jury-trial provision were not addressed in Vinstad or Pearson.  It is the province of the supreme court to make new law on this issue, if a change in the existing law is required.  See generally LaChapelle v. Mitten, 607 N.W.2d 151, 159 (Minn. App. 2000) (noting court of appeals is error-correcting court), review denied (Minn. May 16, 2000).

We further disagree with appellant’s contention that the Seventh Amendment, as applied to the states through the Fourteenth Amendment, grants him a right to a jury trial.  First, the Seventh Amendment right to a jury trial does not apply to state court proceedings.  See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 719, 119 S. Ct. 1624, 1643 (1999) (stating that it is settled law that the Seventh Amendment does not apply to suits brought in state court); Genzel v. Halvorson, 248 Minn. 527, 531, 80 N.W.2d 854, 857-58 (1957) (stating that Seventh Amendment does not apply to the states).  Second, the Eighth Circuit Court of Appeals has specifically rejected the argument that a federal right to a jury trial exists in commitment proceedings.  See Poole v. Goodno, 335 F.3d 705, 710-11 (8th Cir. 2003) (holding that “[t]here is no clearly established supreme court law which holds that due process requires a jury trial in civil commitment proceedings or that incorporates the Seventh Amendment right to a jury for such cases”). 

            Affirmed.