This opinion will be unpublished and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
In the Matter of the Civil Commitment of:
Lloyd Anthony Hartleib,
a/k/a Lloyd Anthony Hartleib,
Alleged Sexual Psychopathic Personality
and Sexually Dangerous Person.
Filed October 12, 2004
Anoka County District Court
File No. PX-99-80
Ronald L. Greenley, 403 Jackson Street, Suite 309, Anoka, MN 55303 (for appellant Hartleib)
Paul C. Clabo, Assistant Anoka County Attorney, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent Anoka County)
Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Hudson, Judge.
Appellant Lloyd Anthony Hartleib challenges his indeterminate commitment as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). He argues: (1) his commitment without a jury trial violated his constitutional rights; (2) the provisions of the SPP and SDP statute are unconstitutional as applied to him; (3) an executive order issued by the governor converted his civil commitment into a criminal detention in violation of his constitutional rights; (4) the evidence is insufficient to sustain a finding that he has a SPP or is a SDP; and (5) indeterminate commitment to the Minnesota Sex Offender Program (MSOP) is not the least restrictive alternative. Because the civil commitment act has withstood constitutional challenges identical to those made by appellant and because appellant’s commitment is justified by findings based upon clear and convincing evidence submitted at the hearing, we affirm.
Appellant challenges both the constitutionality of the statutes under which he was committed and the sufficiency of the evidence to support his commitment. With respect to constitutional challenges, our standard of review is well established:
Whether a statute is constitutional is a question of law subject to de novo review. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). When considering the constitutionality of a statute, we are mindful that laws come to this court with a presumption of validity and may be declared unconstitutional only with great caution and if absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). A person challenging the constitutionality of a statute has the burden of establishing beyond a reasonable doubt that the statute violates a claimed right. In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn. 1996).
In re Kindschy, 634 N.W.2d 723, 729 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001). Our review of challenges to the sufficiency of evidence is limited to ascertaining whether the district court complied with the civil commitment act and whether the commitment was “justified by findings based upon evidence” submitted at the hearing. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).
Appellant argues that he was entitled to a jury trial in this civil commitment proceeding. Minnesota courts have rejected this argument and have held that the state constitution does not guarantee a right to a jury trial in a civil commitment proceeding. See, e.g., State ex rel. Pearson v. Probate Ct., 205 Minn. 556-57, 287 N.W. 297, 303 (1939), aff’d 309 U.S. 270, 60 S. Ct. 523 (1940); Joelson v. O’Keefe, 594 N.W.2d 905, 910 (Minn. App. 1999). As an intermediate appellate court, we cannot overturn established precedent. See State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).
Appellant nevertheless urges us to consider a recent law review article that challenges these holdings. See 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). In this article, Professor Erlinder reasons that a jury trial is constitutionally required in a civil commitment because territorial law provided that when there was an application for appointment of a guardian for 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 in civil trials. Id. at 1277-78. In light of established precedent, however, we decline to re-examine this issue.
Appellant also argues that he is entitled to a jury trial under the United States Constitution. He notes that commitment acts in other states provide far greater safeguards and procedural due process rights than the Minnesota act and that Minnesota is one of few states that fails to provide for a jury trial in civil commitments. He therefore claims that this court should determine that fundamental fairness requires the right to a jury trial when indefinite confinement is at stake. The Eighth Circuit, however, has held that federal due process does not require a jury trial before a person is committed as a SPP or SDP under Minnesota law. Poole v. Goodno, 335 F.3d 705, 710-11 (8th Cir. 2003).
Following established state and federal caselaw, we conclude that the district court did not violate appellant’s constitutional rights by rejecting his request for a jury trial in this civil commitment proceeding.
Appellant argues that the SPP and SDP statutory provisions are unconstitutional as applied to him because they deprive him of his liberty in violation of substantive due process, ex post facto laws, equal protection, and the prohibition against double jeopardy. While he acknowledges that these provisions have withstood identical challenges and have been upheld numerous times, he “maintains that he is in a somewhat different position than those other people” because he has had few offenses and has not committed offenses in situations where he had opportunities to do so. He claims that this demonstration of controlled behavior “flies in the face of ‘utter lack of control’ as interpreted by the courts.”
Appellant’s claim that he is different from others, however, is based on the particular facts of his case, which were considered by the district court when it reached its ultimate determination that he met the statutory criteria for commitment as a SPP and a SDP. He has not identified a constitutional defect in the statute or in its application. As the party challenging the constitutionality of the statute, appellant bears the burden of proving a violation of a constitutional protection beyond a reasonable doubt. See Haggerty, 448 N.W.2d at 364. We therefore conclude that by failing to identify any constitutional defects in the statutory provisions or in their application to him, appellant has not met his burden of proof.
In a pro se motion filed with the district court, appellant argued that an executive order issued by the governor converted his civil commitment into criminal punishment, with resulting violations of constitutional protections against double jeopardy, ex post facto laws, denial of due process, and denial of equal protection. The executive order was issued in July 2003 and prohibited the administrative release of any patients from the MSOP system unless required by law or ordered by a court.
On appeal, appellant merely relies upon his motion to the district court and does not address this issue in his appellate brief. Generally, issues not briefed on appeal are deemed waived. In re Robb, 622 N.W.2d 564, 574 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001); In re Bieganowski, 520 N.W.2d 525, 529 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).
Even if we decide to address this issue, however, we find it to be without merit. The supreme court has rejected the argument that civil commitment is for punitive purposes. In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994). Because the governor’s order allows release if required by law or ordered by a court, it does not change appellant’s civil commitment into a criminal punishment.
Appellant argues that the district court did not have sufficient evidence to find that he has a SPP or is a SDP. To commit a person as a SPP or a SDP, the statutory requirements must be proved by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (2002); see Minn. Stat. § 253B.185, subd. 1 (2002) (provisions of § 253B.18 apply to commitments as SPP and SDP).
A district court’s findings will be upheld unless clearly erroneous and “due regard [is] given to the opportunity of the [district] court to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01; see also In re Schaefer, 498 N.W.2d 298, 300 (Minn. App. 1993). “Where the findings of fact rest almost entirely on expert testimony,” as here, the district court’s “evaluation of credibility is of particular significance.” Knops, 536 N.W.2d at 620.
Sexual Psychopathic Personality
Commitment as a SPP requires a showing of a habitual course of misconduct in sexual matters and an utter lack of power to control sexual impulses so that it is likely the person will attack or otherwise inflict injury on the objects of his uncontrollable desire. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).
Appellant notes that he is now 36 years old, that most of his sexual misconduct occurred when he was a juvenile, and that his last act of sexual misconduct occurred in 1993, when he was 25. He asserts that the district court should have placed greater weight on the actuarial testing rather than the subjective determinations of the experts regarding his likelihood to re-offend. He maintains that the evidence was insufficient to show that he currently exhibits the emotional instability, impulsiveness of behavior, or lack of customary standards of good judgment or that he fails to appreciate the consequences of his personal acts. He further asserts that given his years of treatment and programming, he cannot be considered a danger to other persons.
The district court properly relied on the evidence presented, particularly the testimony of two experts who addressed the criteria necessary to meet the definition of SPP. In addition, both experts testified that (1) their opinions were based on the use of actuarial tests, interviews, and a review of the pertinent records; (2) appellant is only partially treated; and (3) appellant has demonstrated an utter lack of power to control his sexual impulses. We therefore conclude that clear and convincing evidence supports the district court’s findings that appellant meets the statutory criteria for commitment as a SPP.
Sexually Dangerous Person
A SDP is a “person who: (1) has engaged in a course of harmful sexual conduct as defined in [Minn. Stat. § 253B.02, subd. 7a]; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct.” Minn. Stat. § 253B.02, subd. 18c(a) (2002).
Although appellant stipulated to the prior course of harmful sexual conduct, he maintains that insufficient evidence was presented of a mental disorder or dysfunction. He admits that he had problems in the past, but argues that he does not currently have a dysfunction that prevents him from adequately controlling his sexual impulses. He argues that any prediction of engaging in future acts of harmful sexual conduct is speculative, given one of his scores on the actuarial test. He further argues that given his history of treatment, his development of a relapse prevention plan, his willingness to enter inpatient treatment, and the support of his family, insufficient evidence exists to establish that he exhibits an utter lack of control or is highly likely to engage in acts of harmful sexual conduct.
Both experts, however, provided diagnoses of disorders related to appellant’s sexual misconduct. One expert diagnosed appellant as “pedophile, with attraction apparently limited to male children; and personality disorder not otherwise specified, with antisocial traits.” The other expert’s diagnosis included: “pedophile (and aggressed pedophile), history of mixed personality disorder and antisocial personality disorder, history of depression, currently in remission, and history of post-traumatic stress disorder.” Both experts testified that they had weighed appellant’s amenability to continued treatment and his family support, but nevertheless concluded that appellant is utterly unable to control his sexual conduct at this time and that he remains highly likely to re-offend sexually. We therefore conclude that clear and convincing evidence supports the district court’s findings that appellant meets the criteria for commitment as a SDP.
Finally, appellant argues that the 60-day treatment report provided by the Minnesota Sex Offender Program (MSOP) should be given no weight because it was completed by an individual who was not qualified to write it. The county notes, however, that appellant was uncooperative and that he refused a clinical interview and assessment. As a result, the 60-day report was based on the same records available to the district court. Under these circumstances, the report was relevant as an endorsement of the district court’s initial assessment that appellant was appropriately committed as a SPP and a SDP.
Appellant argues that the district court erred in determining that he had not met his burden of establishing that a less-restrictive treatment option than commitment to MSOP was available. Minn. Stat. § 253B.185, subd. 1 provides that “[i]n commitments under this section, the court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient’s treatment needs and the requirements of public safety.”
Appellant insists that he met his burden because both experts testified that he could be treated in a residential treatment program such as Alpha House. But one expert testified that he doubted that Alpha House would accept appellant because he had not successfully completed sex offender treatment in an integrated fashion while incarcerated, he admitted to being sexually aroused and masturbating while having fantasies about boys, and he has had difficulties with staff. The other expert testified that it was his understanding that Alpha House would not consider individuals who are being petitioned as having a SPP or being a SDP. The county’s lead intake social worker testified that Alpha House was unwilling to accept patients if a court found them to have a SPP or be a SDP, and that no funding appeared to exist for the cost of inpatient treatment in the program. We cannot conclude that appellant met his burden of establishing a less restrictive alternative by clear and convincing evidence.
Appellant’s indeterminate commitment as a SPP and a SDP is affirmed.
 In two recent unpublished decisions, this court refused to consider whether Erlinder’s analysis is correct, concluding that “Pearson and the principle of stare decisis prevent us from re-examining this issue” and that “[i]t is the province of the supreme court to make new law on this issue, if a change in the existing law is required.” In re Larsen, A03-1410, 2004 WL 1049844, at *5 (Minn. App. May 11, 2004), review denied (Minn. July 20, 2004); McDeid v. Mooney, A04-36, 2004 WL 728133, at *3 (Minn. App. Apr. 6, 2004), review denied (Minn. May 26, 2004).
 Our decision is consistent with a recent unpublished opinion from this court, which concluded that the governor’s executive order was constitutional. In re Civil Commitment of Fugelseth, A03-1330, 2004 WL 422695, at *7 (Minn. Mar. 9, 2004) (rejecting claim that governor’s executive order violates substantive due process rights by prohibiting administrative release of any patients).