This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Dirk David Kemper,
Commissioner of Human Services,
Filed July 18, 2006
Judicial Appeal Panel
File No. AP059011
S. Dahlquist, 270 Grain Exchange Building,
Mike Hatch, Attorney General, Barry R. Greller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
John J. Muhar, Itasca County Attorney, Mary J. Evenhouse, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent)
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the judicial appeal panel’s decision to dismiss his petition for reconsideration of the commissioner’s denial of his request for transfer to an open hospital, or for a provisional or full discharge from his civil commitment as mentally ill and dangerous, appellant argues that (1) the state should have the burden of proving that he is in need of commitment and it failed to meet that burden, and (2) he could be treated more effectively in a less-restrictive setting. Because the evidence as a whole supports the appeal panel’s findings, we affirm.
D E C I S I O N
An appellate court will reverse a judicial
appeal panel decision only if the decision is clearly erroneous. Jarvis
v. Levine, 364 N.W.2d 473, 474 (
In 1990, appellant Dirk
David Kemper was indeterminately committed as a mentally ill and dangerous
person. Following a long history of
psychiatric hospitalizations, appellant was admitted to the
When considering a request for discharge from commitment, the appeal panel’s findings must address the statutory criteria for discharge of a patient committed as mentally ill and dangerous as set forth in Minn. Stat. § 253B.18, subd. 15 (2004).
A patient who is mentally ill and dangerous shall not be discharged unless it appears to the satisfaction of the commissioner, after a hearing and a favorable recommendation by a majority of the special review board, 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.
Here, the appeal panel concluded that appellant failed to sustain his burden of presenting evidence to establish a prima facie case for a full discharge because he is not capable of making an acceptable adjustment to open society, he continues to be dangerous to the public, and he continues to need inpatient treatment. The appeal panel also concluded that appellant failed to sustain his burden of presenting evidence to establish a prima facie case for transfer to an open hospital because
(a) he has failed to make clinical progress to warrant a transfer and his present treatment needs cannot be met in an open hospital; (b) he continues to need treatment in a secure setting; (c) his need for institutionalization cannot be met in an open hospital; (d) MSH is the facility best suited to meet his current treatment needs; and (e) transfer to an open hospital cannot be accomplished with a reasonable degree of safety to the public.
Significant evidence exists to support the appeal panel’s conclusions. First, appellant experienced a behavioral decline beginning in the spring of 2004. He was moved to a more secure unit as a result of threats to “take out” a security counselor. Appellant was also placed in protective isolation in May 2004, after he and two other patients pounded on office windows and picked up furniture, attempting to break the windows. The facility was required to call in the local police to gain control of the situation. Appellant was also hostile and orally aggressive towards hospital staff, and made several threats to harm staff in the summer and fall of 2005. A threat of force was required on several occasions to encourage appellant to take his medication. Additionally, appellant had not been participating in treatment and refused to address his chemical-dependency issue. Finally, although appellant stated that if he were discharged, he would take his medication, he claimed that he really did not see the need to do so. The court’s independent examiner testified that appellant has no motivation to participate in any form of treatment, continues to believe that he is not mentally ill, denies a need for psychotropic medication, minimizes his past aggressive behavior, and denies that he has been dangerous to others. The appeal panel appropriately applied the statute that states that appellant bears the initial burden of establishing a prima facie case for discharge or transfer to an open hospital, which he failed to do. The appeal panel’s findings sufficiently address the statutory criteria for a discharge or transfer to an open hospital and are clearly supported by the evidence.
Finally, the appeal panel did not err in affirming the commissioner’s denial of appellant’s petition for a provisional discharge because the evidence shows that appellant failed to present a provisional discharge plan to the special review board as required by Minn. Stat. § 253B.18, subd. 7 (2004).