This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Neil Gould,



David Doth, Commissioner of Human Services,


Filed August 5, 1997


Huspeni, Judge

Judicial Appeal Panel

File No. 165-A

Ronald L. Thorsett, 7328 Ontario Boulevard, Eden Prairie, MN 55346 (for appellant)

Hubert H. Humphrey III, Attorney General, Paul Landskroener, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Davies, Judge.



Appellant Neil Gould, who was committed indeterminately as mentally ill and dangerous, challenges the appeal panel's dismissal of his petition and affirmance of the order of the Commissioner of Human Services denying a petition for discharge, contending the evidence as a whole does not support the appeal panel's decision. Because the determination that appellant has not met the standards for discharge is supported by clear and convincing evidence, we affirm.


Appellant was committed indeterminately as mentally ill and dangerous in 1984 after his arrest for an ax incident in a laundromat. He is diagnosed with schizophrenia, chronic and paranoid type, and has resided in an open hospital for many years in partial remission. A recent change in medication improved his thinking and relieved some symptoms. Over the years, appellant has received extended passes to visit family members. During these visits, he took his medication as prescribed.

Appellant petitioned for full discharge from his commitment. If discharged, he planned to reside with his brother and sister-in-law. Respondent Commissioner of Human Services (commissioner) denied his petition and he sought review from the judicial appeal panel.

At the hearing, the court-appointed examiner, Dr. James Jacobson, explained that the hospital recommends that appellant receive a provisional discharge and reside at a halfway house or rule 36 facility. This would encourage his socialization with others, which would help him stay in contact with reality. Otherwise, even with medication, appellant might regress to a more acute form of mental illness. In addition, appellant must show he can handle the transition. If problems arose at a halfway house or rule 36 facility, he could return to the hospital as necessary to address the problems. Appellant, having visited several such facilities, found them more restrictive than the hospital. He does not want to transfer to such a facility.

Dr. Jacobson also stated that it was "absolutely necessary" for appellant to remain on his medications. If not, he could again become acutely ill. Based on the concerns about socialization and medication, Dr. Jacobson declined to recommend full discharge.

Appellant testified he did not believe he was currently mentally ill, although he acknowledged he had been mentally ill at the time of the ax incident. He did not think the medications ever helped him, but has nonetheless voluntarily taken them while hospitalized and while on passes. He explained that if he were discharged and allowed to live with his brother, he would not take the medication unless it was a condition of his discharge.

At the close of appellant's case, respondent moved to dismiss, contending appellant did not demonstrate that he met the standards for discharge. The appeal panel affirmed the order of the commissioner denying appellant's petition for discharge. The panel also noted that although it would be appropriate for appellant to be transferred to a rule 36 facility, appellant had not petitioned for such a transfer or assisted in the preparation of such a plan.


Generally, in reviewing a decision by a judicial appeal panel, the appellate court must not weigh the evidence and try the matter de novo, but instead must determine whether the evidence as a whole sustains the findings. Enebak v. Noot, 353 N.W.2d 544, 548 (Minn. 1984). When reviewing a motion to dismiss at the close of appellant's case, the standard is whether the evidence is sufficient to present a fact question to the finder of fact. Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980).

A person who is committed for an indeterminate period as mentally ill and dangerous may be discharged only pursuant to the provisions of section 253B.18. Minn. Stat. § 253B.18, subd. 3 (1996). The patient may not be discharged without a finding 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 (1996). The petitioning party has the burden of going forward with the evidence, and the party opposing discharge then has the burden of proving the need for commitment by clear and convincing evidence. Minn. Stat. § 253B.19, subd. 2 (1996).

In affirming the order of the commissioner, the appeal panel found that it would be appropriate for appellant to be transferred to a rule 36 facility, but that he had not petitioned for provisional discharge to such a location nor assisted in the preparation of a plan for transfer to such a facility. The appeal panel also found that appellant lacks insight into his problems, requires supervision, and fails to recognize his mental illness and the need for supervision. Although the appeal panel recognized appellant had done well and is psychiatrically stable and in partial remission, it found there was no professional support on the record for appellant's request for a full discharge.

Appellant contends that the record does not support the appeal panel's conclusion that he does not meet the standards for discharge. See Minn. Stat. § 253B.18, subd. 15. Instead, he cites the evidence showing he is psychiatrically stable, in partial remission, has lived successfully in the open hospital for about 11 years, has used extended passes without problems, and has remained medication-compliant. He contends there is no evidence he is dangerous to others, and that the appeal panel did not find he was dangerous. We must reject appellant's contentions.

Gradual integration into society through provisional discharge allows a patient to show he can successfully adjust to open society, while still receiving monitoring for public safety purposes as well as needed services. Lidberg v. Steffen, 514 N.W.2d 779, 783 (Minn. 1994). Despite appellant's improvements, he did not recognize that his illness continued or that he needed medication and socialization to prevent an acute relapse. Dr. Jacobson believed appellant should be transferred to a rule 36 facility to show he can make the transition, to allow him to return to the hospital to address problems as they arose, and to ensure he continued to take his medication. He unequivocally opposed discharge at this time. The evidence supports the findings and the conclusion that appellant had not met the standards for discharge.