This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Gary A. Medley,


Cal Ludeman,
Commissioner of Human Services,



Filed July 10, 2007


Peterson, Judge


Judicial Appeal Panel

File No. AP069006


Michael C. Hager, 301 Fourth Avenue South, Suite 270, Minneapolis, MN  55415 (for appellant)



Lori Swanson, Attorney General, Cara M. Hawkinson, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and



Robert M.A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN  55303 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges a decision by the judicial appeal panel granting respondent Commissioner of Human Service’s motion to dismiss and affirming respondent’s order denying appellant’s petition for transfer to the department of corrections and discharge from his indeterminate commitment as mentally ill and dangerous.  We affirm.


            Appellant Gary A. Medley, currently age 46, was committed to the Minnesota Security Hospital (MSH) as mentally ill and dangerous (MI&D) in 1992.  Between 1987 and 1990, appellant was arrested for assault, forced a man to engage in sexual activity at gunpoint, and sexually assaulted two prison inmates.  The 1992 commitment petition included appellant’s admission that he had raped a woman.  While hospitalized at MSH, appellant repeatedly acted aggressively toward others.  Appellant has refused to attend sex-offender treatment programs. 

            Appellant has a history of self-injurious behavior, including multiple suicide attempts.  The most recent incident occurred in August 2006, when appellant taped together three writing pens and inserted them so deeply into his rectum that they perforated his bowel.  As a result, appellant required emergency surgery due to infection and would have died without immediate medical attention. 

            Appellant began heavily using alcohol and drugs by age 14 and continued using them while incarcerated.  Appellant has falsely reported psychiatric symptoms to MSH staff to obtain drugs, including painkillers and psychotropic medications.  Appellant has repeatedly failed to complete chemical-dependency treatment programs.  Appellant has an extensive history of escapes from confinement and supervised release.

            A July 2005 report by Lorri Sills, M.D., a psychiatrist on appellant’s treatment team, stated that the treatment team could support a transfer to the department of corrections.  In August 2005, appellant petitioned respondent Commissioner of Human Services for transfer to the department of corrections and full discharge from his civil commitment and requested a hearing before the special review board (SRB).  Following a hearing, the SRB made findings and recommended denying appellant’s petition.  Based on the SRB’s findings and recommendation, the commissioner issued an order denying appellant’s petition.  Appellant filed a petition for rehearing and reconsideration before the judicial appeal panel under Minn. Stat. § 253B.19, subd. 2 (2006).

            On October 3, 2006, appellant was evaluated by court-appointed independent-examiner Peter Meyers, Psy.D., Licensed Psychologist.  Meyers opined that appellant “continues to display dramatic symptomatology of mental illness pathology leading to a dramatic need for inpatient treatment and further supervision.”  Meyers noted, “[appellant] has yet to complete any treatment as it pertains to his dramatic sexual deviancy issues.  He has done little programmatically to reduce the risk of sexual violence.”  Meyers also noted that appellant has repeatedly failed to complete chemical-dependency treatment.  Meyers diagnosed appellant as currently suffering from sexual sadism; sexual masochism; zoophilia; polysubstance dependence, chronic, in a controlled setting; antisocial personality disorder; and borderline personality disorder features. 

            Meyers concluded that appellant experiences “mild to moderate psychiatric distress and impairment” but opined that appellant clearly meets the criteria for psychopathy.  Meyers noted that “[r]esearch has consistently noted that individuals who meet the criteria for psychopathy are three to four times more likely to violently re-offend following release from custody.”  Meyers concluded:

The Minnesota Department of Corrections is ill equipped to manage any long-term individual therapy.


            [Appellant] reported that “time” should be viewed as the primary consideration in his overall reduction in violence and recidivism.  However, research does not at all support or [bear] witness to said viewpoint.  [Appellant] in many ways is starting over regarding psychiatric programming with his placement into the 700 Unit at MSH.  There is very little evidence to suggest that he has even remotely resolved his self-injurious drives as they pertain to sexual masochistic proclivities.  Worse still, is his having dramatic characterlogical pathology superimposed on the fact that he meets the criteria for psychopathy only fueling the need for continued intensive treatment and supervision in a secured setting.  He remains fully a risk to the public at large.


            Given [appellant’s] present display of appreciable mental illness pathological symptomatology and serious self-injurious conduct, it is opined that the only placement is that of continuing hospitalization at [MSH] and not the Minnesota Department of Corrections.  Equally, a Provisional Discharge is unwarranted. 


            Meyers testified at the hearing before the judicial appeal panel that appellant currently suffers from a mental illness based on his diagnosis of an Axis-I major mental illness of sexual masochism under the DSM-IV-TR.  Meyers testified that appellant’s sexual sadism and sexual masochism illustrate a danger to self and indicated that appellant is a danger to others due to his sadistic drives.  Meyers opined that appellant’s sadistic drives combined with chemical dependency have often led to criminal behavior, making appellant a danger to society.  Meyers opined that there is no other facility, including the corrections department, that can provide appellant with the treatment that he needs. 

            At the conclusion of appellant’s case, the commissioner moved to dismiss under Minn. R. Civ. P. 41.02(b).  The appeal panel granted the commissioner’s motion and affirmed the commissioner’s order denying appellant’s petition.  This appeal followed.



            Appellant argues that the judicial appeal panel erred in determining that he failed to meet his burden of proving that transfer is appropriate.  In reviewing a decision of the judicial appeal panel, the appellate court must determine from an examination of the record whether the evidence as a whole sustains the panel’s findings.  Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992).  “[I]t is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.”  Id. The judicial appeal panel’s assessment of the credibility of experts has particular significance.  Id.

            A transfer out of a secure treatment facility is governed by Minn. Stat. § 253B.18, subd. 6 (2006).  Five statutory factors must be considered before a patient will be transferred out of a secure setting:  (1) clinical progress and treatment needs; (2) need for security to accomplish treatment; (3) need for continued institutionalization; (4) which facility is best for the person’s needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public.  Id.

            At the hearing before the judicial appeal panel, appellant claimed that his reports about engaging in sexual activity with dogs and fantasizing rape and murder were fabricated.  The appeal panel noted appellant’s claim, and we can infer from the panel’s order in its entirety that the panel found appellant’s claim not credible.

            Appellant cites Sills’s previous support of a transfer to the department of corrections as evidence that he meets the criteria for transfer.  But Sills’s statement supporting transfer was made in 2005, before the self-injurious incident in August 2006, which Meyers considered significant.

            Appellant objects to an internal security level assigned by MSH.  But the appeal panel’s order does not indicate that it considered the security level in reaching its decision.

            The judicial appeal panel found:

            That Appellant has not met his burden of proof consistent with the factors under Minn.Stat. §253B.18, subd. 6 because (a) he has not made adequate clinical progress to warrant a transfer to the Department of Corrections, particularly in light of his recent self-injurious behaviors related to his sexual masochistic proclivities and his present treatment needs cannot be met within the Department of Corrections; (b) he still needs treatment in a secure hospital setting; (c) his need for institutionalization is best met in a secure hospital setting; (d) Minnesota Security Hospital is the facility most suited to meet his current treatment needs; and (e) transfer to the Department of Corrections cannot necessarily be accomplished with a reasonable degree of safety for the public, including other inmates and staff.


            The appeal panel’s findings are supported by Meyers’s testimony and report and by a November 2005 risk appraisal.  Evidence supporting the findings includes appellant’s failure to complete sex-offender or chemical-dependency treatment; an association between conditional-release failures and future violent acts; and Meyers’s conclusion that MSH is the only facility that can meet appellant’s treatment needs.

            Appellant’s argument that he has met the statutory requirements for transfer ignores the treatment component of a secure treatment facility and the statutory factors considering treatment needs.  The appeal panel did not err in finding that appellant failed to prove that transfer was appropriate.


            Appellant argues that the judicial appeal panel erred in determining that he had not met his burden of establishing a prima facie case for full discharge.  The same standard is applied to decide a motion for dismissal under Minn. R. Civ. P. 41.02(b) as to decide a motion for a directed verdict under Minn. R. Civ. P. 50.01.  Usher v. Allstate Ins. Co., 300 Minn. 52, 57, 218 N.W.2d 201, 205 (1974).

A motion for a directed verdict presents a question of law for the trial court: whether the evidence is sufficient to present a fact question for the jury to decide.  A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law.  Finally, in considering the motion, the trial court must accept as true the evidence favorable to the adverse party and all reasonable inferences which can be drawn from that evidence.  This court must apply the same standard. 


Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992) (citations omitted), review denied (Minn. Aug. 4, 1992).

            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. 


Minn. Stat. § 253B.18, subd. 15 (2006). 

            The petitioning party “bears the burden of going forward with the evidence.”  Minn. Stat. § 253B.19, subd. 2 (2006).  “[T]he patient may be initially required to show that he meets the standards for discharge, and . . . the state must then establish that the patient does not meet those standards.”  Caprice v. Gomez, 552 N.W.2d 753, 758 (Minn. App. 1996).  The petition alone does not constitute a prima facie case; the petitioner must provide “sworn competent testimony that would enable a fact-finder to determine the patient is ready to be discharged.”  Id.

            Appellant argues that he was determined safe to be released to the State of Nevada in 2004 and that nothing has occurred since then that creates any sexual risk.  But the decision to release appellant to Nevada is not under review.  Meyers’s report and testimony, presented by appellant at the hearing before the judicial appeal panel, show that appellant does not satisfy the criteria stated in Minn. Stat. § 253B.18, subd. 15.

            The November 2005 risk appraisal also indicates that appellant continues to be a danger to the public.  Based on the results of tests designed to measure the risk of future violence, the examiners determined that appellant scored in the high range level for psychopathy, was at a higher risk for re-offense than most offenders studied in the normative sample, and was more likely to commit a future violent offense than to refrain from committing such an act if released into the community. 

            The appeal panel did not err in concluding that appellant failed to establish a prima facie case for discharge.

            Appellant states that his commitment “approaches the unconstitutional.”  This statement is insufficient to raise a constitutional issue.  In any event, a constitutional claim cannot be raised for the first time on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).