This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In the Matter of the Civil Commitment

of Lance Blankenburg.



Filed June 13, 2006

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge


Hennepin County District Court

File No. 27-MH-PR-05-124


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


Amy Klobuchar, Hennepin County Attorney, Theresa Couri, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent Hennepin County Medical Center)


            Considered and decided by Toussaint, Chief Judge; Ross, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Lance Blankenburg challenges several orders relating to his commitment as mentally ill, contending that there is insufficient evidence to support his commitment, that certain orders are void because they were signed by a judge who was removed from the case, and that his due-process rights were violated because he was not given notice of an amended stayed order of vacation of the stayed commitment.  Because the district court correctly ruled that there was no basis to vacate district court orders where there was no evidence that a challenged judge disqualified or recused himself and no question as to the judge’s impartiality and that appellant’s due-process rights were not violated when the stayed commitment was vacated upon an affidavit where he had notice of and agreed to this procedure in his written plan, we affirm those rulings.  Because the district court’s findings supporting the commitment are insufficiently specific, we reverse and remand for additional findings.



            An appellate court will not reverse findings of fact unless clearly erroneous.  In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995).  Whether the evidence is sufficient to show that the standards for commitment are met is a question of law reviewed de novo.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).

            Initially, appellant challenges his commitment as mentally ill.  A person who is mentally ill is defined, in relevant part, as one who has a substantial psychiatric disorder and who “poses a substantial likelihood of physical harm to self or others as demonstrated by . . . a recent attempt or threat to physically harm self or others.”  Minn. Stat. § 253B.02, subd. 13(a)(3) (2004).  “[A] state cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”  O’Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494 (1975).  The statute “clearly requires that the substantial likelihood of physical harm must be demonstrated by an overt failure” to obtain necessities or by a recent attempt or threat to harm self or others and that mere speculation is not sufficient.  McGaughey, 536 N.W.2d at 623.

            The commitment must be supported by clear and convincing evidence.  Minn. Stat. § 253B.09, subd. 1(a) (2004).  The court must find facts specifically.  Id., subd. 2 (2004).  “Where commitment is ordered, the findings of fact and conclusions of law shall specifically state the proposed patient’s conduct which is a basis for determining that each of the requisites for commitment is met.”  Id.  Inadequate trial court findings make meaningful review difficult.  In re King, 476 N.W.2d 190, 194 (Minn. App. 1991).  An appellate court will remand the matter if the findings are “wholly inadequate” to support commitment, even if the determination is supported by the evidence.  In re Danielson, 398 N.W.2d 32, 37 (Minn. App. 1986).

            The parties agreed to submit the case on the record, and, if the court found a sufficient factual basis to support commitment, appellant agreed to a stayed commitment.  The district court made two summary findings as to the likelihood of harm.  First, the court found that appellant struggled with police when they attempted to detain him for an evaluation.  Appellant contends that there was no indication as to the details of the struggle and whether he made any threats or attempted any harm.  Second, the court found that appellant drove recklessly because he believed that he was being followed.  Appellant contends that this does not rise to the level of a substantial likelihood of harm as contemplated by statute or past precedent.  He asserts he did not make any threats, physically harm himself or others, or attempt to physically harm himself or others.

            We recognize that neither the person’s intent nor the outcome of the action is relevant to the determination of whether the person’s conduct meets the requirement of harm.  In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989).  But here, the problem is that the district court’s findings are insufficiently specific.  A mere reference to a struggle or to driving recklessly, without more, provides insufficient facts on which to base or review the commitment.  While the facts in the record may support the commitment, there were no findings as to those facts.  Consequently, we remand for the district court to determine whether it can make the factually specific findings required by Minn. Stat. § 253B.09, subd. 2.  The district court may also inquire into whether commitment remains necessary, in light of the fact the commitment was initially stayed.  See Danielson, 398 N.W.2d at 37 (noting that court may inquire into continued necessity for commitment where patient had been provisionally discharged).  We note that this does not result in appellant’s immediate release; instead, the matter is remanded for further consideration by the district court.


            Next, appellant argues that the orders of February 16, 2005, May 25, 2005, and June 3, 2005, should be vacated as void because they were signed or countersigned by a judge (the challenged judge) who, appellant argues, was removed from the case.

            The district court, in an October 19, 2005 order signed by a different judge, addressed the challenge and made findings of fact on this issue.  The court found that the law clerk to the challenged judge, who was personally acquainted with appellant, informally asked the court administrator to schedule appellant’s hearing before another judge to spare appellant embarrassment if he were to have his personal affairs considered in her presence.  The court’s file contains a handwritten note of unknown authorship that says, “Do not sched w/Judge.”  But there was no written communication from the challenged judge in which he officially disqualified or recused himself from presiding over the matter.

            A referee, not the challenged judge, conducted the commitment hearing.  The three orders that appellant challenges were recommended by the referee and countersigned by the challenged judge.  The district court concluded that the challenged judge did not disqualify himself from the proceedings and denied the motion to vacate the orders.

            A party or attorney may serve notice to remove a judge.  Minn. R. Civ. P. 63.03.  No such notice of removal was filed here.  A judge shall not sit on a case if the judge is interested in the determination or might be biased.  Minn. R. Civ. P. 63.02.  A judge whose impartiality might reasonably be questioned shall disqualify himself or herself from the proceeding.  Minn. Code Jud. Conduct 3D.  But there is no claim that the challenged judge had a personal interest or bias in the case or that his impartiality was questioned.

            Appellant nonetheless argues that the circumstances of this case, taken as a whole, should be enough to remove the judge from the case, because any ambiguities in the civil commitment law should be construed against the state and in favor of the person being deprived of liberty.  See In re Colbert, 464 N.W.2d 505, 507 (Minn. 1991) (addressing when term of commitment should be deemed to have begun in light of delay caused by county’s appeal).  We see no ambiguity and agree with the district court that appellant has presented no reason to vacate the orders.


            Finally, appellant contends that his due-process rights were violated because he did not receive notice of the amended stayed order for commitment or of the revocation of the stayed commitment.  Under the commitment law, the district court may authorize a stay of commitment subject to specified conditions.  Minn. Stat. § 253B.095, subd. 1(d) (2004).  When the patient fails to comply with the conditions, the court may revoke the stay and commit the patient either on notice and a hearing or as the court otherwise orders.  Id., subd. 5 (2004).

            At appellant’s commitment hearing, appellant agreed that, if the court found sufficient facts to support his commitment as mentally ill, he would agree to a stayed commitment based on specified terms.  Rather than requiring notice and a hearing, the parties agreed that the stay order could be revoked upon the filing of an affidavit indicating that an integral condition of the stay had been violated and that appellant could then request a court hearing within two weeks of revocation.  This agreement was based on a written case plan prepared with the participation of appellant, his lawyer, the lawyer for respondent Hennepin County Medical Center, and appellant’s case manager, and signed by appellant.  But the February 16, 2005 order incorrectly stated that the stay could be revoked and the commitment executed after due notice and a hearing.

            Respondent’s counsel noticed this error and, on May 25, 2005, contacted the referee asking that the order be amended to reflect the parties’ agreement and indicated that she had a call placed with appellant’s attorney.  On May 25, 2005, the court issued an amended order providing that the stay could be revoked and allowing appellant to seek review of the revocation within 14 days after the ex parte order was filed.  Appellant asserts that neither appellant nor his counsel was notified that the order was going to be amended and that he was not served with the amended order.

            Respondent then made an ex parte motion for vacation of the stayed order for commitment based on an affidavit alleging that appellant had not complied with the conditions of the stay.  On June 3, 2005, the district court vacated the stay and provided that appellant had 14 days to request a hearing challenging the vacation.

            Appellant contends that his due-process rights were violated because his stayed commitment was vacated without notice and a hearing as required by the initial stayed order of February 16, 2005.  Due-process protections include reasonable notice.  Humenansky v. Minn. Bd. of Med. Examiners, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  Those deprived of liberty through commitment are entitled to “scrupulous due-process protection.”  In re Robledo, 611 N.W.2d 67, 70 (Minn. App. 2000).

            The district court ruled in the order addressing this challenge that the terms of appellant’s agreement, as reflected in the written case plan filed with the court at the February 14, 2005 hearing, did not require that appellant receive notice and a hearing before the order for the stayed commitment be revoked.  The district court ruled that it had authority to revoke appellant’s release under the terms he accepted and endorsed at the February 14, 2005 hearing, under Minn. Stat. § 253B.095, subd. 5 (authorizing district court to revoke stay after notice and hearing unless otherwise ordered by court).  It determined that the error on the February 16, 2005 order was in the nature of a scrivener’s error.  Further, the court held an evidentiary hearing on the challenge to the vacation of the stay.  Appellant’s case manager testified as to the grounds for vacation of the stayed order, and, on this evidence, the district court ruled that appellant had not complied with the material conditions of release.

            While appellant should have been notified of the amended order and served with it, he nonetheless had notice – as evidenced by his signing of the written release plan – that his stayed commitment could be vacated upon the filing of an affidavit, with a hearing to follow.  Consequently, there was no due-process violation.

            In summary, the district court decision committing appellant as mentally ill is reversed and remanded for additional findings of fact by the district court, which may also consider current evidence as to appellant’s condition.  The district court decisions rejecting appellant’s challenges to the district court judge and his claim that his due-process rights were violated are affirmed.

            Affirmed in part, reversed in part, and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.