This opinion will be unpublished and

may not be cited except as provided by

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






James P. Kerkes,


Cal R. Ludeman, Commissioner of Human Services,


Filed September 18, 2007


Minge, Judge


Anoka County District Court

File No. P4-87-12834



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


Lori Swanson, Attorney General, Robin Christopher Vue-Benson, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


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


            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

            Appellant challenges a decision by the judicial appeal panel dismissing appellant’s petition for transfer and discharge from his indeterminate commitment as mentally ill and dangerous.  We affirm. 



Appellant James P. Kerkes, now 46 years old, has an extensive history of mental illness, alcohol abuse, and cannabis abuse.  Appellant has a history of suffering from hallucinations in which God commands him to perform certain acts.  Appellant also has a history of suicide attempts.  He has been committed numerous times and provisionally discharged.  In 1987, appellant put his car into a spin, crossed into oncoming traffic, and hit another vehicle.  He told the driver of the other vehicle, “‘God told me that I should hit you.’”  In December 1989, appellant attempted to hit his sister-in-law, and he bit a family friend.  Two days later, appellant kicked, punched, and threatened to kill a police officer.  In 1992, appellant pushed his mother, threatened to kill his father, and attempted to assault his brother. 

            In 1997, appellant assaulted a staff member at Mercy Medical Center’s psychiatric unit.  Appellant explained that God told him “that the male staff member had ‘raped’ a woman named ‘Katie’ in 1990, and that he had been directed by God to break the arm of the male staff person for this ‘rape’ which otherwise would have gone unpunished.”  Following the assault, appellant met a female x-ray technician and became obsessed with her.  Appellant explained that he “heard the voice of God telling him to marry her.”  The woman obtained a restraining order, which appellant violated.  Appellant told the woman that he was destined to marry her and asked her if she had breast implants. 

            Appellant was committed as mentally ill and dangerous in 1999.  The district court ordered his indeterminate commitment in 2000.  Appellant currently resides at the Minnesota Security Hospital (MSH) in St. Peter.  Appellant’s current diagnosis is paranoid schizophrenia. 

            On September 7, 2005, appellant petitioned respondent Commissioner of Human Services (commissioner) for a discharge from civil commitment.  In the alternative, appellant requested a transfer to the Anoka-Metro Regional Treatment Center (AMRTC).  The special review board (SRB) made findings of fact and recommended denial of appellant’s petition.  Based on the SRB’s findings and recommendations, the commissioner issued an order denying appellant’s petition.  Appellant filed a petition for rehearing and reconsideration before the judicial appeal panel. 

            As part of the appeal-panel proceedings, the court appointed independent psychological examiner James H. Gilbertson, Ph.D.  Gilbertson has assessed appellant on several occasions, beginning in 1988.  Gilbertson completed a psychiatric assessment of appellant for purposes of the review hearing.  In conducting that assessment, Gilbertson observed that appellant does not believe that he is mentally ill, believes that God has released him from his mental illness, and believes that his symptoms do not require medication.  During Gilbertson’s evaluation, appellant acknowledged that he barricades his door at night because he fears being sexually assaulted while sleeping, stated that he does not trust members of his treatment team, claimed that one member of his treatment team intentionally harms him, and reported that he has special knowledge that this member of his team was raped when she was younger.  Appellant also told Gilbertson that

he has been battling a group of individuals he references as the “Jexers.”  These are individuals who practice hypnotism.  They have infiltrated positions in government, schools, jails and hospitals.  He believes they can reach high places and, even Ronald Reagan was “programmed by them.” 


In his report, Gilbertson ultimately recommended that appellant should neither be discharged nor transferred from the MSH. 

            Gilbertson testified at the hearing before the judicial appeal panel.  Gilbertson indicated that he agreed with the recommendation in his written report.  He acknowledged that in appellant’s current therapeutic setting, his threat level for assault is under control.  But Gilbertson opined that appellant is not ready for a full discharge from commitment.  Gilbertson also stated that the MSH is the appropriate setting for appellant’s continued treatment.  Gilbertson explained that he does not believe that appellant could safely transfer to AMRTC. 

            Appellant testified on his own behalf and also called a family friend.  Appellant’s mother and father also testified. 

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



            In reviewing a judicial appeal panel’s decision, the appellate court must examine the record to determine 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. (quotation omitted).  The judicial appeal panel’s assessment of the credibility of experts is particularly significant.  Id. 


            The first issue is whether the judicial appeal panel erred in determining that appellant failed to meet his burden to prove that a transfer is appropriate.  Appellant contends that his transfer to AMRTC is appropriate because he would benefit from the “social support” of family and friends, and because “the medication and therapy opportunities at AMRTC” would promote his mental health.

            A patient’s request to transfer out of a secure treatment facility is governed by Minn. Stat. § 253B.18, subd. 6 (2006).  The commissioner must deny the request unless the transfer is appropriate.  Id.  Five statutory factors must be considered in determining whether a transfer out of a secure setting is appropriate: “(i) the person’s clinical progress and present treatment needs; (ii) the need for security to accomplish continuing treatment; (iii) the need for continued institutionalization; (iv) which facility can best meet the person’s needs; and (v) whether transfer can be accomplished with a reasonable degree of safety for the public.”  Id. 

            The judicial appeal panel found that appellant “continues to display significant paranoia.”  Specifically, the panel found that appellant believes “that his behaviors are monitored by cameras, that he is being sexually assaulted in his sleep and that medical or law enforcement personnel are sex offenders who he is directed, by God, to harm.”  Applying the statutory factors, the judicial appeal panel concluded that appellant had not met his burden to show that a transfer is appropriate because:

(a) he has not made adequate clinical progress to warrant a transfer and his present treatment needs cannot be met in an open hospital setting; (b) he still needs treatment in a secure setting; (c) his need for institutionalization cannot be adequately met in an open hospital; (d) Minnesota Security Hospital is the facility most suited to meet his current treatment needs; and (e) transfer to an open hospital cannot be accomplished with a reasonable degree of safety for the public.


Appellant claims that a transfer is appropriate because one of the experts involved with appellant’s 1999 commitment characterized appellant’s contact with his victims as “insufficient for commitment as mentally ill and dangerous.”  But appellant’s argument ignores the fact that three of the four experts agreed that appellant met the statutory definition of mentally ill and dangerous.  And the district court also discounted the lone dissenting expert, noting that his opinion “[did] not follow the standard established by the statute.” 

At oral argument, appellant emphasized that his March 2005 transfer from the secure unit of the MSH at St. Peter to a more open unit at the St. Peter Regional Treatment Center was persuasive evidence that he was fit to be transferred to AMRTC in September 2005.  According to appellant, the March 2005 transfer lasted only a few days because he chose to return to his MSH unit.  Appellant contends that because there is no indication that his circumstances have changed since the March 2005 transfer, he was transfer-appropriate in September 2005 – the time of his current request. 

Appellant’s argument is difficult to evaluate.  First, although appellant gave testimony regarding the transfer, it is unclear whether the transfer argument was presented to the SRB or to the judicial appeal panel.  The petition requesting the SRB review did not ask that transfer to a non-secure facility be considered.  Generally, on appeal, we do not consider issues that were not presented to the decision-making body below.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  And most importantly, no record of the earlier transfer was included in the record on appeal.  We cannot determine from this record if appellant’s claimed March 2005 transfer between units at the St. Peter facility was a transfer within the meaning of Minn. Stat. § 253B.18, subd. 6.  Even if there was such a transfer, appellant’s return to his prior unit may indicate that the transfer effort was unsuccessful or that conditions changed after appellant was transferred.  Under all the circumstances, we conclude that any such earlier “transfer” is irrelevant to our consideration of this appeal, and we do not further consider the argument.

            Appellant also contends that he meets the transfer criteria because he has not assaulted anyone in eight years and because he has stopped contacting the woman with whom he was previously obsessed.  But appellant’s positive conduct occurred while he was at the MSH, a secure facility.  Good behavior in a controlled environment is not determinative of dangerousness to the public.  In re Bobo, 376 N.W.2d 429, 432 (Minn. App. 1985). 

            In his written report, Gilbertson opined that appellant “continues to be delusional, denies that he is mentally ill, takes medication reluctantly but has no insight with respect to its risk/benefit.”  Gilbertson further stated that appellant “continues to require a program that has sufficient security to prevent elopement and a program that continues to insist on medication compliance.”  Gilbertson recommended appellant’s “continued placement at MSH.”  We conclude that the record sustains the judicial appeal panel’s determination that appellant failed to meet his burden to prove that a transfer is appropriate. 


            Appellant also 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. 

            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), review denied (Minn. Oct. 29, 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. 

            The judicial appeal panel concluded that appellant had not met his burden to establish a prima facie case for a full discharge because: “(a) he is not capable of making an acceptable adjustment to open society without supervision; (b) he presents a risk and danger to the public in the absence of any supervision and services; and (c) he continues to need treatment and supervision.” 

            To support his argument, appellant again cites the fact that he has not been involved in a physical assault for eight years.  He also contends that he is a good worker who is capable of being employed.  But as previously addressed, a person’s good-behavior record in a controlled environment is not indicative of that person’s dangerousness to the public.  Bobo, 376 N.W.2d at 432.  And in his psychological assessment of appellant, Gilbertson indicated that appellant was last employed approximately ten years ago and “does not have a specific plan on how he may support himself” upon discharge. 

            In his written report, Gilbertson opined that appellant does not have “the requisite mental and emotional stability[,] nor the insightfulness or treatment compliance necessary that would render him no longer dangerous to the public.”  Gilbertson indicated that appellant did not have a “viable discharge plan[].”  Gilbertson noted that although appellant has been provisionally released in the past, “he has not established a good ‘track record’ of treatment compliance or stabilized living upon such release.”  Expressing optimism that a less-restrictive setting may be appropriate in the future, Gilbertson ultimately found that the MSH is currently the most appropriate treatment setting for appellant.

            We conclude that the judicial appeal panel correctly determined that appellant failed to meet his burden to establish a prima facie case for full discharge.