This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of:

Carl Leroy Anderson.

Filed June 2, 1998


Willis, Judge

Hennepin County District Court

File No. P99660607

Marilyn B. Knudsen, E-1314 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant Anderson)

Hubert H. Humphrey III, Attorney General, Theresa M. Couri, Alan Held, Assistant Attorneys General, NCL Tower, Suite 900, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.



The district court committed Carl Leroy Anderson as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). Anderson appeals, raising procedural issues, the merits of his SPP commitment, and the constitutionality of the SDP act. We affirm.


Carl Leroy Anderson was adjudicated delinquent for criminal sexual conduct four times in 1994 and 1995, while he was a juvenile. The pre-teen victims included a boy whom Anderson sexually abused over a three-year period, two girls whom he sexually abused for about two years while his mother babysat for them, and a boy whom he abused for two to three months. The abuse included repeated sexual fondling and digital and penile penetration.

On May 23, 1996, the juvenile court held a combined formal dispositional review hearing and an adjudicatory hearing on an alleged probation violation. The juvenile court determined that Anderson violated his probation by failing to complete inpatient sex offender treatment successfully and it ordered him held in detention until his 19th birthday, which was on December 27, 1996.

Anderson's probation officer filed a petition to commit Anderson as an SDP on May 9, 1996, but sought to withdraw the petition on May 14 because Anderson had not been served properly. The district court ordered the new petition filed by May 17. Anderson's social worker filed a second petition for commitment as an SDP on May 15. But after the attorney general's office declined to represent the petitioner, citing insufficient time to prepare for trial and Anderson's refusal to waive the time requirements, the petitioner moved to dismiss. The district court dismissed the petition without prejudice on June 17, 1996, but later noted it had not been informed that this was a second petition.

On November 7, 1996, the Kandiyohi County Attorney, represented by the attorney general, petitioned to commit Anderson as both an SPP and an SDP. The hearing on this third petition had to be held by December 23 to meet the 44-day time limit.[1] Because of concerns that Anderson would seek dismissal of the third petition if a hearing was not held within the statutory period, the county attorney filed a fourth petition, identical with the third, on December 17, 1996.

On December 18, petitioner moved for a continuance of the hearing on the third petition, contending that Anderson's attorney waived the time limit by making the appointment for Anderson's examination by the court-appointed examiner for January 22, 1997. Anderson moved to dismiss the third petition based on the facts that successive petitions were filed and that the hearing on the third petition would be untimely. The court denied Anderson's motion and granted the motion for the continuance.[2]

Meanwhile, because Anderson would be released from juvenile detention on December 27, 1996, the petitioner moved for an order holding him until a decision on his commitment. When the district court refused to conduct the hearing, the petitioner obtained a writ of prohibition from this court remanding the matter for a hearing. On December 27, 1996, after a hearing, the district court issued an order holding Anderson until the court could conduct the commitment hearing.

After the commitment hearing, the district court issued an initial order committing Anderson as an SPP and SDP. Anderson appeals.



Anderson first contends his commitment should be reversed because statutory procedures for commitment were not followed and the court made various other errors. He raises issues of law, which this court reviews de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

(a) Successive Petitions

Anderson contends that because the first two petitions were dismissed, additional petitions should not be allowed unless they contain new evidence. He first cites the fact that the petitioners dismissed the first two petitions because the petitioners could not meet the time limits the commitment law imposes. See Minn. Stat. § 253B.08, subd. 1 (1996) (providing that hearing on petition must be held within 14 days after filing but court may extend time of hearing for up to additional 30 days for good cause). Anderson cites no authority for the proposition that this alone is sufficient to bar the later petitions.

Anderson complains that he was deprived of his liberty for over a year while threats of commitment "cast a pallor on his life." But Anderson was detained under the juvenile law until December 27, 1996. Thereafter, the district court ordered him held until it could conduct the commitment hearing. See Minn. Stat. § 253B.07, subd. 7(d) (providing that after preliminary hearing, court may issue hold order for proposed patient, if serious imminent physical harm to patient or others is likely unless patient is confined). Such confinement meets constitutional due process requirements where there is notice, representation by counsel, a hearing within 72 hours of initial confinement, and a determination there is probable cause to hold the person. State ex rel. Doe v. Madonna, 295 N.W.2d 356, 363, 365-66 (Minn. 1980). Those requirements were met here, and Anderson's confinement prior to his commitment did not unconstitutionally deprive him of liberty.

Anderson also claims that under Minn. R. Civ. P. 41.01(a), the second voluntary dismissal constituted an adjudication on the merits. The first petitioner was appellant's probation officer, and the petition was for an SDP commitment. On May 15, Anderson's social worker filed an otherwise identical second petition for an SDP commitment. But because the first and second petitions here had different "plaintiffs," they are excluded from the provisions of rule 41.01(a) under these circumstances. See Minn. R. Civ. P. 41.01(a) (providing that voluntary dismissal operates as adjudication on merits for purposes of successive suit by same plaintiff).

Anderson next contends the dismissal of the second petition was obtained ex parte when he was not represented and that the judge had no knowledge it was a second petition. But he fails to argue the legal effect of these claims.

Anderson also claims that the dismissal of the second petition constitutes an adjudication on the merits under Minn. R. Civ. P. 41.02. But Anderson has not explained the basis for his belief that the second petition was involuntarily dismissed pursuant to rule 41.02, and thus he cannot prevail on that ground.

Anderson argues that he was prejudiced because of the delay that resulted from the failure to proceed with the second petition. He contends that the proceedings on the second petition likely would have been completed prior to his 19th birthday, when he was scheduled to be released from juvenile detention. Because they were not, the district court issued an order holding him in custody after his discharge from juvenile detention. As a result, he contends he was restricted as to when he could contact an attorney, he had no opportunity to demonstrate he could control himself in the community, and he lost his ability to prepare his defense and participate in interviewing witnesses with his attorney.

When the first two petitions were filed, Anderson was being held in juvenile detention; this detention would have existed and continued regardless of whether the petitions were filed. After the third petition was filed, the committing court ordered Anderson held pursuant to the commitment act. See Minn. Stat. § 253B.07, subd. 7(d) (providing for preliminary hold). While, as Anderson contends, the hold deprived him of liberty, the procedure met due process standards. See Madonna, 295 N.W.2d at 365-66 (listing minimum standards required for due process). We do not address whether, if Anderson had not already been subject to juvenile detention, a preliminary hold under the commitment act for each petition would have been proper.

We note that we do not approve of the fact that the judge who ordered the dismissal of the second petition was not made aware of the first petition. Further, we do not suggest that successive commitment petitions may be filed with impunity; there may be circumstances in which this would constitute an abuse of the system. But under the facts here, no abuse occurred.

(b) Whether Petitions Conformed with Statutory Requirements

Anderson contends the petitions did not meet the standards required by Minn. Stat. § 253B.07. Because the first two petitions were dismissed, we address only the third. Anderson contends the petitioner's knowledge was "second hand," and the petitioner was not involved in his treatment. The statute requires that the petition is to be executed by one having knowledge of the facts. Minn. Stat. § 253B.185, subd. 1 (1996). There is no provision that the petition must be based on direct knowledge of the facts, which in this case includes records as far back as 1981, or that the petitioner must be a treatment provider. Anderson also faults the fact there is no examiner's statement attached to the petition. Again, the statute does not require that an SPP or SDP commitment petition have such a statement attached.

(c) Inadequate Time to Prepare for Hold Hearing

Anderson contends that he had insufficient time to prepare for the hearing on the hold order because he received only two days' notice, citing Minn. R. Civ. P. 6.04 (requiring five days' notice for motion hearing). The commitment statute provides for a minimum of 24 hours' notice of a preliminary hold hearing. Minn. Stat. § 253B.07, subd. 7(b) (1996). Because the record shows that Anderson in fact was given more than five days' notice, his claim of inadequate notice fails.

(d) Challenges to Hold Order

Anderson contends that many of the documents used at the hold hearing were unreliable hearsay. See Minn. Stat. § 253B.07, subd. 7(b) (providing reliable hearsay may be used at preliminary hold hearing). Anderson has failed to identify the specific documents to which he objects, and his arguments are therefore deemed waived. See In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1995), review denied (Minn. May 16, 1995).

Anderson argues that use of hearsay documents violated his rights to confrontation and cross-examination. But the constitutional right to confrontation in a criminal prosecution is not applicable to a civil commitment proceeding. Id.

Anderson also contends there was an insufficient showing of immediate dangerousness to issue a preliminary hold order. In its December 27, 1996, order, the district court found probable cause to conclude that serious imminent physical harm to Anderson or others was likely if he were not held. See Minn. Stat. § 253B.07, subd. 7(d) (setting forth this standard). The court cited many incidents of criminal sexual conduct, failure to complete sex offender treatment, and predictions Anderson was at risk to continue to sexually abuse children. These findings are sufficient to support the district court's conclusion.

(e) Timely Hearing on the Merits

Anderson contends that he did not receive a timely hearing and that he did not waive his right to one. A hearing on a petition for commitment must be held within 14 days after the filing of the petition for commitment. Minn. Stat. § 253B.08, subd. 1 (1996). For good cause shown, the court may extend the time of the hearing for up to an additional 30 days. Id. When the hearing is not held within the required period, the proceedings shall be dismissed. Id.

Anderson argues that because he was deprived of a timely hearing on the first two petitions, the later petitions should be dismissed. This argument has no merit; when a petition is dismissed, no hearing can be held.

Anderson next asserts that he did not waive his right to have a hearing on the third petition within 44 days. He contends he served and filed notice that he did not intend to waive any time requirements, but he fails to cite where such notice appears in the record. The district court's order of June 17, 1996, states that the county attorney sought dismissal of the second petition because the attorney general's office was unable to prepare for the hearing in time and Anderson refused to waive the time limits, but Anderson has made no showing that he filed a notice that he did not intend to waive time requirements for any subsequent petition. See Irwin, 529 N.W.2d at 373 (holding issues waived if inadequately argued or briefed). Anderson has not shown the district court committed error.

In its December 26, 1996, order, the district court found that Anderson's attorney "tacitly" waived the 44-day time limit under Minn. Stat. § 253B.08, subd. 1, when she voluntarily set the examination of her client by the first court-appointed examiner for January 22, 1997, which was 76 days after the third petition was filed. The court found that Anderson's attorney was knowledgeable about this case and experienced in the area of SDP and SPP commitments. Thus, she obviously was aware of the time limit for the hearing. We agree with the district court that counsel's action in scheduling the examination after the 44-day time limit would run constituted waiver of that limit. See In re Buckhalton, 503 N.W.2d 148, 151 (Minn. App. 1993) (holding timely hearing may be waived), aff'd, 518 N.W.2d 531 (Minn. 1994).

Anderson alternatively argues that his counsel, without his authorization, waived the time limit, apparently referring to the third petition. While appellant complains that this decision was his to make, counsel was bound by his decision only to the extent that Anderson articulated it. See Minn. R. Civ. Commitment 4.06(d) (providing that counsel is bound to extent patient articulates instructions as to whether to demand immediate hearing or consent to continuance). Anderson cites to nothing in the record that shows he articulated instructions to his counsel not to waive the time limit for the hearing on the petition.

Finally, Anderson asserts the waiver was not effective because the court did not determine it was knowingly, intelligently, and voluntarily made. The district court's findings as to waiver in its December 26, 1996, order are sufficient.

(f) Right to Counsel

When a petition for commitment is filed, the proposed patient has the right to counsel. Minn. Stat. § 253B.03, subd. 9 (1996) (current version at Minn. Stat. § 253B.07, subd. 2c (Supp. 1997)). Anderson asserts that in seven instances he was denied this right, but he fails to cite to the record, making it impossible to determine whether his allegations are supported. See Minn. R. Civ. App. P. 128.03 (requiring party referring to record or appendix to cite particular part of record or appendix in which reference is found); see also Irwin, 529 N.W.2d at 373 (concluding that argument waived if insufficiently argued or briefed). Anderson has not shown that his right to counsel was violated.

(g) Records

All relevant evidence shall be admitted at the commitment hearing, and the court's determination shall be made on the whole record pursuant to the rules of evidence. Minn. Stat. § 253B.08, subd. 7 (1996). A district court's decision on the admissibility of evidence will not be disturbed absent an error of law or an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). A new trial will be granted only upon a showing the court committed prejudicial error. Id.

Anderson does not identify the particular exhibits that he objects to but rather broadly describes the categories of evidence, including treatment and juvenile records, that he asserts should not have been considered. See Irwin, 529 N.W.2d at 373 (holding that where appellant fails to specifically identify exhibits to which he objects, inadequate brief results in waiver of issue).

Anderson contends he was not told that his treatment and juvenile records would be used in the commitment proceeding. But he acknowledges that the records were obtained pursuant to a court order. And while he claims that the order does not authorize the use of the records in the commitment proceeding, he does not identify the documents he claims were not authorized. The district court file shows that on November 21, 1996, petitioner moved for production of Anderson's records, including his treatment and juvenile records, pursuant to In re D.M.C., 331 N.W.2d 236, 238-39 (Minn. 1983) and Minn. Stat. § 253B.07, subd. 3 (1996). The court provided notice to Anderson and his attorney of a November 25, 1996, order directing the affected facilities and agencies to produce the records.

Anderson claims that his juvenile records were obtained in violation of the juvenile court act. Juvenile court records relating to a nonpublic juvenile court proceeding are not open to public inspection or disclosure, except when documents are produced by court order. Minn. Stat. § 260.161, subd. 2 (1996). The juvenile court rules also provide that a court may order juvenile records disclosed to a person "having a legitimate interest in the child or in the operation of the court." Minn. R. Juv. P. 30.02, subd. 3(A)(3). The petitioner had a legitimate interest in Anderson under the commitment law, and the juvenile records were, therefore, obtained as provided by law.

Anderson also contends that the court's decision to admit his treatment and juvenile records into evidence violated the data practices act. See Minn. Stat. § 13.05, subd. 4 (1996) (prohibiting use of private or confidential data with certain exceptions). Private medical and court services data may be disclosed pursuant to a valid court order. Minn. Stat. §§ 13.42, subd. 3(c) (1996) (medical data), 13.84, subd. 5(f) (1996) (court services data). The district court issued a valid order.

Anderson also challenges the use of the same private data by Dr. Harry Hoberman, petitioner's expert witness. When a governmental unit must supply private data to a contracting party, it may do so, although the contracting party must maintain the data in a manner that is consistent with its character under the data practices act. Minn. Stat. § 13.05, subd. 6 (1996). The petitioner hired Dr. Hoberman as an expert to offer his opinion as to the merits of the commitment. Access to the private data was necessary for Dr. Hoberman to offer that opinion. See Buckhalton, 503 N.W.2d at 152. We find no error in the district court's rulings.

(h) Additional Expert Witness

Anderson also claims that he was improperly denied an additional expert witness to counter petitioner's independent expert. Absent legal authority to support this argument, we decline to address it. Koppinger v. City of Fairmont, 311 Minn. 186, 189 n.2, 248 N.W.2d 708, 711 n.2 (1976) (holding party waives issue by failing to provide analysis).


Anderson challenges the merits of his commitment as an SPP. He disputes the district court's determination that he had an utter lack of power to control his sexual impulses, which is required for commitment under the sexual psychopathic personality statute. See Minn. Stat. § 253B.02, subd. 18a (1996).

The petitioner must prove the requirements for an SPP commitment by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (1996); see Minn. Stat. § 253B.185, subd. 1 (1996) (stating that provisions of section 253B.18 apply to SPP commitments). Whether there is clear and convincing evidence sufficient to show that a person exhibits an utter lack of power to control his sexual impulses is a question of law. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994).

The supreme court has addressed the standards for determining whether a person has a predatory sex impulse and the lack of power to control it.

[T]he court considers the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender's attitude and mood, the offender's medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it.

In re Blodgett, 510 N.W.2d 910, 915 (Minn.), cert. denied, 513 U.S. 849 (1994). In later opinions from this court, additional relevant factors have been identified to assist courts in making this determination. See In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995) (considering refusal of treatment and lack of relapse prevention plan), review denied (Minn. Aug. 30, 1995); Irwin, 529 N.W.2d at 375 (considering lack of insight into sexually abusive behavior).

Anderson does not challenge the district court's findings as to his history. But he contends the district court erred in its ultimate determination as to utter lack of control because he was not without power to control himself at the time of the hearing. He claims that he showed he could control his behavior, and he described his relapse plan. He asserts his inappropriate behavior occurred only when he was a juvenile and suffering from depression.

The district court heard extensive testimony regarding Anderson's offenses, as well as testimony from three experts evaluating his condition. The experts all agreed that Anderson demonstrated an utter lack of power to control his sexual impulses, citing numerous factors listed in relevant case law. They did not consider his relapse plan to be reasonable. After considering all the evidence, the district court concluded Anderson had an utter lack of power to control his sexual impulses. It rejected his testimony to the contrary. The district court was required to assess the credibility and weight given to the witnesses, and its decision is supported by the record and is not clearly erroneous.

Finally, Anderson contends he cannot be committed under the SPP and SDP statutes because the conduct that occurred was committed while he was a juvenile. He cites no authority for this proposition, and we decline to address it. See Koppinger, 311 Minn. at 189 n.2, 248 N.W.2d at 711 n.2 (holding issue waived when party fails to analyze it).


Anderson contends that the SDP law is unconstitutional, citing Kansas v. Hendricks, 117 S. Ct. 2072 (1997). The Minnesota Supreme Court upheld the constitutionality of the SDP law against substantive due process and double jeopardy challenges, but the United States Supreme Court has vacated that decision and remanded the case for reconsideration in light of Hendricks. In re Linehan, 557 N.W.2d 171, 180-89 (Minn. 1996), vacated & remanded, 118 S. Ct. 596 (1997). These issues are currently pending before the Minnesota Supreme Court on remand. Under these circumstances, this court will continue to find the statute constitutional pursuant to Linehan, pending further direction from the supreme court.


[ ]1 A hearing must be held within 14 days after the filing of the petition but may be extended for 30 days for good cause. Minn. Stat. § 253B.08, subd. 1 (1996). Because the 44th day fell on the weekend, the last day for the hearing was Monday, December 23, 1996. See Minn. R. Civ. P. 6.01.

[ ] 2 Anderson unsuccessfully sought interlocutory review of these orders from the appellate courts.