This opinion will be unpublished and

may not be cited except as provided by

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




David M. Aanerud,



David Doth,

Commissioner of Human Services,


Filed May 26, 1998


Shumaker, Judge

Crow Wing County District Court

File No. P1-94-1068

T. Oliver Skillings, 201 North Broad Street, No. 301, P.O. Box 3544, Mankato, MN 56002-3544 (for appellant)

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

Donald F. Ryan, Crow Wing County Attorney, Eric S. Westphal, Assistant Crow Wing County Attorney, 326 Laurel Street, Brainerd, MN 56401-3564 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.



Appellant, David M. Aanerud, a resident at the Minnesota Security Hospital, appeals from the denial of his petition for transfer to a less restrictive mental health facility. We affirm.


Appellant was committed to the Minnesota Security Hospital on October 27, 1994, for an indefinite period after being found to be mentally ill and dangerous. His lengthy, violent history includes an assault on his pregnant wife resulting in the death of the unborn child; the stabbing of his sister; assaults on his father and on police officers; a threat to kill his girlfriend; and an attempt to burn down the motel at which he was staying. At times he has been delusional, has heard voices, and has been hyperactive and quick to anger. Many of the violent incidents occurred while appellant was under the influence of alcohol or illegal drugs. As a teenager he was diagnosed in 1975 as having an antisocial personality disorder and later in 1979 as being chemically dependent. Over the past 23 years, appellant has been treated and hospitalized many times for chemical dependency. According to appellant's court-appointed psychologist, appellant's current primary diagnosis is schizoaffective disorder and polysubstance abuse, and his secondary diagnosis is antisocial personality disorder. Both appellant and his psychiatrist admit that appellant needs chemical dependency treatment, although appellant denies that he is chemically dependent and contends that the treatment program at the security hospital has nothing new to offer him.

A judicial appeal panel denied appellant's transfer petition on the ground that he failed to meet the requisite statutory transfer criteria.


In reviewing an appeal panel decision, this court must determine whether or not the record is sufficient to sustain the panel's findings. Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992). Minn. Stat. § 253B.18, subd. 6 (Supp. 1997), provides five criteria for determining whether or not a mentally ill and dangerous person may be transferred to an open hospital:

i. the patient's clinical progress and treatment needs;

ii. the need for security to accomplish continuing treatment;

iii. the need for continuing institutionalization;

iv. which facility can best meet the patient's needs; and

v. whether transfer can be accomplished within a reasonable degree of safety for the public.

Minn. Stat. § 253B.18, subd. 6 (Supp. 1997). The petitioner has the burden of showing by a preponderance of the evidence that the transfer would be appropriate under the statutory criteria. Piotter, 490 N.W.2d at 919.

The appeal panel affirmed the commissioner of human services' denial of appellant's transfer petition. The commissioner based the denial on special review board findings that appellant is not actively involved in treatment; that he has not attended his chemical dependency program since July 1996; that he has refused psychological testing and meetings with physicians and has refused to participate in a work plan offered to him.

Appellant acknowledges his need for continued secure hospitalization, but he argues that he is entitled to transfer to an open hospital setting because he has abstained from chemicals since October 1994; his schizoaffective disorder is in remission because of neuroleptic medications; and he has not had significant violent behavior for two years. He contends that, because of his progress, the state must transfer him to a less restrictive facility unless the state can prove that such a transfer would not be appropriate. In support of his argument, appellant erroneously relies on initial and continued commitment authorities. See Minn. R. Civ. Comm. 12.06 (b) (outlining state's burden of proof at an initial commitment hearing); In re Dirks, 530 N.W.2d 207 (Minn. App. 1995) (placing on proponent of indeterminate commitment burden of showing that placement is least restrictive facility), and In re Schauer, 450 N.W.2d 194 (Minn. App. 1990) (determining whether petitioner's continued commitment as mentally ill and dangerous was appropriate). These authorities do not control transfer petitions. See Piotter, 490 N.W.2d at 919 (petitioner bears burden of showing transfer appropriate).

The record shows that appellant has made substantial behavioral improvements but that he does not demonstrate a clear acceptance of his chemical dependency and has refused treatment and programs at the security hospital designed to address his dependency. Appellant's chemical dependency is one of his primary diagnoses and was a contributing factor in the behaviors that resulted in a finding of dangerousness. The appeal panel correctly determined in its order of March 1, 1996, that until appellant

is able to demonstrate a clear acceptance of his chemical dependency and participate for a substantial period of time in treatment at his current location, there can be no support for his transfer to a less secure facility.

Appellant also contends that his continued commitment at the Minnesota Security Hospital violates his constitutional rights to due process and equal protection of the law. His argument is based on his claim that his primary mental illness is in remission because of medications. He contends that his confinement for a propensity for dangerousness unrelated to mental illness and for which no treatment is required is nothing more than unconstitutional preventive detention. See Reome v. Levine, 692 F. Supp. 1046, 1051 (D. Minn. 1988). Appellant's constitutional argument has been consistently rejected in other cases involving the discharge criteria. The statutory discharge procedure has been upheld in the face of constitutional challenges. See Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995) (it is constitutionally permissible to apply statutory discharge criteria to persons committed as psychopathic personalities); Lidberg v. Steffen, 514 N.W.2d 779, 783 (Minn. 1994) ("due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.") Appellant acknowledges his mental illness, his need for continued secure hospitalization, and his need for chemical dependency treatment. Considering the significance of his chemical dependency, it is a reasonable and compelling inference that, without appropriate treatment, he will continue to engage in violent and assaultive behavior. There is clearly a reasonable relationship between the nature and duration of the commitment and the reason for that commitment.