This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)

                          State of Minnesota
                            in Court of Appeals

     Emery E. Bush,


Maria Gomez, Commissioner of Human Services,

Filed June 25, 1996
Norton, Judge

Judicial Appeal Panel

File No. 144

James W. Brandt, P.O. Box 57, St. Peter, MN 56082 (for Appellant)

Hubert H. Humphrey, III, Minnesota Attorney General, Steven J. Lokensgard,
Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN
55101-2127 (for Respondent Commissioner of Human Services)

Earl E. Maus, Cass County Attorney, Courthouse, Box 3000, Walker, MN 56484
(for Respondent Cass County)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and
Stone, Judge.(*)
        [Footnote] (*)Retired judge of the district court,
        acting as judge of the Court of Appeals by
        appointment pursuant to Minn. Const. art. VI, §
                        Unpublished Opinion


On appeal from a decision by the judicial appeal panel, appellant Emery E.
Bush claims he should have been discharged from his indeterminate
commitment as a psychopathic personality. He also argues his continued
confinement constitutes double jeopardy. We affirm.

Appellant Emery Bush is a 50-year-old man who has spent 24 years in prison.
In addition to the crimes of grand larceny, unauthorized use of a vehicle,
assault, burglary, and arson in the third degree, Bush has been convicted
of sexually dangerous acts. In May 1970, when Bush was 24 years old, he was
convicted of sexual intercourse with a 13-year-old child. After serving an
18-month prison sentence, Bush was released to a halfway house. He escaped,
and one month later he crawled into a parked car and threatened a 16-year-
old girl with a knife. Based on this incident, his parole was revoked.
After being released, Bush was convicted in 1974 of false imprisonment for
restraining a girl, and served a 27-month prison sentence for that offense.
In April 1978, Bush was convicted of criminal sexual conduct in the third
degree, for which he served six and one-half years in prison. Three days
after being released to a halfway house in 1983, Bush escaped and some ten
days later raped a woman. Bush was convicted of criminal sexual conduct in
the first degree for that offense.

Bush was committed for an indeterminate period to the Minnesota Security
Hospital as a psychopathic personality in January 1993. By May 1994, he
petitioned for discharge. After the Commissioner of Human Services denied
the petition based on the recommendation by the special review board, Bush
petitioned a three-judge appeal panel for rehearing and reconsideration.

At the hearing, Dr. Michael Millard, a psychologist, diagnosed Bush with
chemical dependency and an antisocial personality disorder. Bush has not
developed a relapse prevention plan or acknowledged he needs chemical
dependency treatment. Dr. Millard explained Bush must be treated for
chemical dependency before the source of his antisocial behavior can be
determined. Without inpatient treatment for chemical dependency, he would
not be able to adjust to open society and continues to be a danger to
others in the ``mixed picture'' that is present because of the chemical
dependency. There was no convincing evidence Bush would no longer act out.

Bush testified that he knows using alcohol caused him trouble in the past,
but explained he would not be dangerous if released because he would no
longer drink. Instead, he would enter chemical dependency treatment, attend
AA, and obtain a job. He has refused to participate in sex offender
treatment while at the hospital, and claims that chemical dependency
treatment has ``not really'' been offered to him.

After this testimony, the Commissioner moved to dismiss because Bush did
not establish a prima facie case establishing that he met all three of the
discharge criteria. Bush contended that he set forth a prima facie case for
provisional discharge to Fergus Falls Regional Treatment Center for
chemical dependency treatment, and that there was no evidence he continues
to be in need of sex offender treatment.

The appeal panel granted the Commissioner's motion. Emery Bush appeals.


A person who seeks discharge from commitment as a psychopathic personality
must follow the procedures outlined in Minn. Stat. § 253B.18 (1994).
See Minn. Stat. § 253B.185, subd. 1 (1994) (unless otherwise
specified, provisions relating to commitment as mentally ill and dangerous
apply to commitment as a psychopathic personality); Call v. Gomez,
535 N.W.2d 312, 319 (Minn. 1995) (discharge criteria in Minn. Stat.
§ 253B.18, subd. 15, apply to psychopathic personality commitment).

When the Commissioner of Human Services denied Bush's petition for
discharge, Bush asked the judicial appeal panel for rehearing and
reconsideration of the decision. Minn. Stat. § 253B.19, subd. 2 (1994).
At the hearing before the judicial appeal panel, the petitioning party, in
this case Bush, ``bears the burden of going forward with the evidence.''
Id. ``The party opposing discharge bears the burden of proof by
clear and convincing evidence that the [patient] is in need of
commitment.'' Id. The factors the judicial appeal panel considers in
determining whether the person should be discharged are whether
        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 in-
        patient treatment and supervision.

Minn. Stat. § 253B.18, subd. 15; Call, 535 N.W.2d at 319.

The appeal panel here found that Bush failed to establish a prima facie
case that a change had occurred in his condition entitling him to release,
which would permit the hearing to go forward. See Minn. Stat.
𨵕B.19, subd. 2. It cited the relevant statutory factors in section
253B.18, subd. 15, and stated that the only testimony Bush presented was by
Dr. Millard, who opined that Bush has changed very little since his initial
commitment. The panel stated that it was without jurisdiction to review
Bush's commitment and that Bush was precluded from challenging the
commitment in a discharge proceeding.

Bush argues he is entitled to discharge, contending his commitment was not
justified because the state never established he had an identifiable sexual
disorder. See Minn. Stat. § 253B.02, subd. 18a (1994) (current
definition of sexual psychopathic personality); State ex rel. Pearson v.
Probate Court of Ramsey County, 205 Minn. 545, 555, 287 N.W. 297, 302
(1939), aff'd, 309 U.S. 270, 60 S.Ct. 523 (1940) (requiring habitual course
of misconduct in sexual matters, evidencing an utter lack of power to
control sexual impulses and ``likely to attract or otherwise inflict
injury, loss, pain or other evil on objects of their uncontrolled or
uncontrollable desire''). He argues that, consequently, his commitment does
not bear a reasonable relation to the original purpose for the commitment,
and he must be discharged. See Call, 535 N.W.2d at 319 (continued
commitment justified so long as person continues to need inpatient
        and supervision for sexual disorder and poses danger
        to public). We disagree.

The supreme court has held that the statutory criteria set forth in section
253B.18, subdivision 15, apply in a psychopathic personality discharge
proceeding. Call, 535 N.W.2d at 318. Here, as the appeal panel found, Bush
failed to establish this prima facie case by showing these factors were
met. The request for reconsideration was properly denied. Bush may not
challenge the merits of his commitment in the discharge proceeding. See
id. at 318-19.

Bush next argues that his continued confinement constitutes double
jeopardy. We disagree. The supreme court has held that commitment under the

psychopathic personality statute is remedial because it is for treatment
and thus does not constitute double jeopardy. Id. at 320.