This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-1158

Harold Sazenski,
Appellant,

vs.

Michael OíKeefe,
Commissioner of Human Services,
Respondent.

Filed December 21, 1999
Affirmed
Randall, Judge

Judicial Appeal Panel
File No. 115-C

Allan R. Poncin, Suite 810, Towle Building, 330 Second Avenue South, Minneapolis, MN 55401-2226 (for appellant)

Mike Hatch, Attorney General, Narda Jones, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2124 (for respondent commissioner)

Amy Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County)

 

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

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant Harold Sazenski, who was committed as mentally ill and dangerous for an indeterminate period, challenges the decision by the judicial appeal panel denying his petition for transfer from the Minnesota Security Hospital to an open hospital. He contends that the evidence supported his transfer as a matter of law, and that his continued confinement at the security hospital is unconstitutional. We affirm.

FACTS

Sazenski, who had a history of committing physical assaults and destroying property, was charged with first-degree criminal sexual conduct for a sexual assault occurring in 1989. The district court found him not guilty by reason of mental illness. The district court, in a separate proceeding, later committed him to the security hospital for an indeterminate period as mentally ill and dangerous, and this court affirmed. In re Sazenski, No. C6-90-2272 (Minn. App. Jan. 22, 1991). Since he began taking medication in 1992, Sazenski has not been psychotic and suffers only residual symptoms. Despite his improvement, he has continued to make some threats over the years, and, recently, a female staff member began avoiding contact with him because he "sexualized" their relationship.

Dr. Paul Reitman, the court-appointed examiner, and Dr. Thomas Gratzer, Sazenskiís treating psychiatrist, diagnosed Sazenski with schizophrenia, in partial remission, and narcissistic and antisocial personality disorders. Both also diagnosed him with alcohol and polysubstance drug abuse in a controlled environment, although Dr. Reitman noted it was in remission.

Dr. Reitman and Dr. Gratzer disagreed as to whether Sazenski was ready for transfer to an open hospital. Dr. Reitman recommended transfer to an open hospital, albeit to a locked unit, based on Sazenskiís medication compliance and his lack of physical aggression over the last several years. Further, he described Sazenski as coming to a "standstill" with his sex-offender treatment at the security hospital. He explained that although the security hospital staff were genuinely concerned about Sazenskiís dangerousness due to his personality disorders, they may not have been fully aware of his cognitive problems that give him difficulty in responding properly to treatment. He recommended strongly that Sazenski be transferred to a locked unit of an open hospital so that he can receive treatment at another facility.

Members of Sazenskiís treatment team opposed transfer at present. Dr. Gratzer recommended that Sazenski needed to increase his medication to treat his residual paranoid symptoms, and needed to continue to monitor and develop his awareness of his sexual behavior. Further, Dr. Gratzer did not agree with Dr. Reitmanís recommendation that Sazenski be transferred to a locked unit of an open hospital; the latter would not provide as much security as the locked units at the security hospital, and Sazenski would have access to vulnerable female patients. Finally, although Dr. Gratzer agreed that Sazenskiís treatment needs could be met in an open hospital, he felt the risk of dangerousness was too great for transfer.

The judicial appeal panel denied Sazenskiís request for transfer, and he appeals.

D E C I S I O N

A party aggrieved by the decision of the judicial appeal panel may appeal to the court of appeals as in other civil cases. Minn. Stat. ß 253B.19, subd. 5 (1998). This court may reverse the appeal panel only if the decision is clearly erroneous. Jarvis v. Levine, 364 N.W.2d 473, 474 (Minn. App. 1985). This court will not consider the matter de novo, and if the evidence supports the appeal panelís findings, "it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary." Johnson v. Noot, 323 N.W.2d 724, 728 (Minn. 1982) (citation omitted). In the case of expert opinion, the appeal panelís assessment of credibility takes on special significance. Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992).

Minn. Stat. ß 253B.18, subd. 6 (1998), provides five factors to consider in determining whether transfer is appropriate:

(i) the personís 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 personís needs; and
(v) whether transfer can be accomplished with a reasonable degree of safety for the public.

The parties agree that Sazenski needs continuing treatment and institutionalization; in dispute were the degree of security required to ensure public safety and whether he can continue to receive effective treatment at the security hospital. Presented with conflicting opinions, the panel found that the evidence supported the continued need for Sazenskiís inpatient treatment in a secure facility. The panel recognized that Sazenskiís mental illness was in partial remission, he was compliant with his medication, and he was aware of some of the symptoms of his mental illness. But it concluded he represented a risk to others as a result of his personality disorders and his failure to fully recognize his mental condition. Consequently, continued treatment in a secure facility was necessary until Sazenski demonstrated a longer period of compliance with his current medication program and continued to increase his recognition of his mental condition. The panel was also concerned that there had been little or no treatment of Sazenskiís personality disorders, and it looked for improvement in that area in the future.

Sazenski contends that the appeal panel erred because the evidence showed he met the standards for transfer as a matter of law. He cites Dr. Reitmanís recommendation for treatment in an open hospital, where Sazenski could receive the psychological treatment he needs for his personality disorders, as well as his opinion that Sazenskiís sex-offender treatment had come to a standstill at the security hospital. Further, Dr. Gratzer recognized that Sazenskiís treatment needs could be met at an open hospital as well as the security hospital. Sazenski also relied on Dr. Reitmanís opinion that he was not dangerous while medication compliant, because he is no longer psychotic and has not been aggressive for years. He contends that Dr. Gratzer's testimony did not provide facts rising to the level of clear and convincing evidence on the issue of his dangerousness, and argues that as a matter of law, the testimony was insufficient to support a determination that his transfer should be denied.

Contrary to Sazenskiís arguments, Dr. Gratzerís testimony and the other evidence provided clear and convincing evidence from which the appeal panel could conclude that safety concerns precluded Sazenskiís transfer to a less restrictive placement at this time. The appeal panelís decision to credit the testimony of Dr. Gratzer and others on this point rather than Dr. Reitmanís was a discretionary decision, well within their powers, and on this record, that decision was not clearly erroneous.

Sazenski also contends that the denial of his petition for transfer and his continued commitment to the security hospital violate his due process rights, and that the transfer criteria are void for vagueness. But Sazenskiís arguments rest on his contention that safety concerns can be met by transfer to an open hospital. As discussed above, the appeal panel found to the contrary.

Affirmed.