                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2012).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A14-0720

              In the Matter of the Civil Commitment of: Charles Walter Bathel

                                   Filed October 6, 2014
                                         Affirmed
                                      Hudson, Judge

                               Hennepin County District Court
                                File No. 27-MH-PR-13-1046

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Michael C. Hager, Minneapolis, Minnesota (for appellant)

         Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

HUDSON, Judge

         Appellant challenges the district court’s order civilly committing him as a sexually

dangerous person (SDP) and sexual psychopathic personality (SPP), arguing that his

commitment to the Minnesota Sex Offender Treatment Program (MSOP) was

unconstitutional on several grounds. We affirm.
                                        FACTS

       In October 2013, a petition was filed to commit appellant Charles Walter Bathel as

an SDP under Minn. Stat. § 253D.02, subd. 16 (Supp. 2013) and SPP under Minn. Stat.

§ 253D.02, subd. 15 (Supp. 2013). Appellant moved to dismiss the petition, arguing that

commitment to MSOP violated substantive due-process rights because it constituted

preventive detention after an offender’s release from prison.      He also argued that

committing only sex offenders violated principles of equal protection, that the SDP and

SPP statutes were void for vagueness, and that commitment as an SDP or SPP violated

double-jeopardy provisions and his right to a jury trial. The district court denied the

motion.

       The record at appellant’s commitment hearing establishes that, in 1985, appellant

pleaded guilty to two counts of fourth-degree criminal sexual conduct after he sexually

assaulted two 14-year-old boys while they were delivering newspapers. His 26-month

sentence was stayed, contingent on his cooperating with and completing sex-offender

treatment. A psychological evaluation showed that appellant expressed distressed and

distorted thinking, raising serious concerns about future assaultive, destructive, and

possible homicidal behavior. The testing psychologist opined that appellant presented a

danger to the general public.

       While appellant was on probation, his stayed sentence was revoked because he did

not comply with court-ordered treatment. Because the remainder of his sentence was not

long enough to complete sex-offender treatment in prison, he was required to complete

that treatment on supervised release. But while on supervised release, he was terminated


                                           2
from one treatment program for failure to be accountable for his whereabouts. His

conditions of release were restructured, he entered another treatment program, and his

sentence then expired.

       In 1993, appellant delivered a partially clothed, dead body to the Edina police

department. Appellant eventually admitted that he had met the victim, a prostitute, and

strangled him, although he later recanted his confession. A jury found appellant guilty of

second-degree murder, and he was sentenced to 373 months incarceration; he was

scheduled for release in March 2014.

       During an interview for the SDP/SPP review report, appellant stated that he had

not intended to kill the victim, but when he encountered resistance, he “did what [he]

did.” According to this report, appellant has current diagnoses of panic disorder without

agoraphobia, sexual abuse of a child, and antisocial personality disorder. He has also had

diagnoses of relational problem not-otherwise-specified, general anxiety disorder, seizure

disorder, bipolar disorder, bipolar affective disorder, mixed anxiety disorder, and

claustrophobia. A 2007 assessment indicated an additional diagnosis of pedophilia. A

2008 report noted that appellant had an “uncommon combination of Antisocial and

Aggressive (Sadistic) endorsed traits,” which “suggest[ed] a cruel, malevolent, and

callous individual, capable of extreme acting out.”

       A Minnesota Department of Corrections (DOC) report noted allegations that

appellant sexually assaulted two other offenders while incarcerated, although the alleged

victims declined to press criminal charges. The SDP/SPP review report stated that

appellant had a “tendency to exaggerate and distort his personal history,” denied mental-


                                            3
health concerns, and denied any sexual relationships since his incarceration, despite

contrary records. The results of the Minnesota Sex Offender Screening Tool 3.1 placed

appellant at a high risk to reoffend.

       After the petition was filed, the two court-appointed examiners, Drs. Ahlberg and

Gilbertson, gave their opinions that appellant met the criteria for commitment as an SDP.

Dr. Ahlberg opined that appellant also satisfied the requirements for commitment as SPP,

while Dr. Gilbertson stated that whether he met those requirements was “arguable.” Both

examiners stated that appellant had engaged in a course of harmful sexual conduct, had

shown conditions of emotional instability, and was, in part, impulsive, lacking customary

standards of good judgment. Both examiners also opined that the 1993 murder was

sexually motivated and that appellant had inadequate control over his sexual impulses.

Dr. Ahlberg diagnosed appellant with sexual abuse of a child, anxiety disorder, and

antisocial personality disorder.    Dr. Gilbertson diagnosed appellant with personality

disorder with passive-aggressive traits. The examiners each reviewed appellant’s results

on several actuarial instruments; his scores on those tools contributed to their conclusions

that he was highly likely to sexually reoffend. Both expressed the opinion that the MSOP

was the appropriate placement for appellant.

       The district court found, by clear and convincing evidence, that appellant satisfied

the requirements for commitment as a sexually dangerous person under Minn. Stat.

§ 253D.02, subd. 16, and as a sexual psychopathic personality under Minn. Stat.

§ 253D.02, subd. 15. The district court issued a warrant committing appellant to MSOP.

This appeal follows.


                                             4
                                     DECISION

       The district court shall civilly commit a person under the Minnesota Commitment

and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities,

if it finds clear and convincing evidence that the person is an SDP or SPP, unless that

person establishes the existence of a less-restrictive treatment program. Minn. Stat.

§§ 253D.01, .07, subd. 3 (Supp. 2013). This court will not set aside a district court’s

findings of fact unless they are clearly erroneous. In re Knops, 536 N.W.2d 616, 620

(Minn. 1995).    But the issue of whether the facts satisfy the statutory criteria for

commitment is reviewed de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994)

(Linehan I ).

       A person may be committed as an SDP if the person: (1) has engaged in a course

of harmful sexual conduct; (2) has manifested a sexual, personality, or other mental

disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual

conduct. Minn. Stat. § 253D.02, subd. 16. To commit someone as an SPP, the district

court must find (1) a habitual course of misconduct involving sexual matters; (2) an utter

lack of power to control sexual impulses; and (3) dangerousness to others. Minn. Stat.

§ 253D.02, subd. 15; Linehan I, 518 N.W.2d at 613.

       Appellant does not argue that the district court’s findings are defective or that the

district court clearly erred by finding that he met the statutory criteria for commitment as

an SDP and SPP. Rather, he challenges his commitment as SDP and SPP on several

constitutional grounds.




                                             5
       First, he argues that sex-offender treatment at MSOP, which implicates his liberty

interest, violates substantive due process. He maintains that the state lacks a compelling

interest in his preventive detention and should be required to prospectively assess the

appropriateness of other forms of treatment before committing him to MSOP. A civilly

committed mental patient has a constitutional right to adequate treatment. Bailey v. Noot,

324 N.W.2d 164, 167 (Minn. 1982); In re Civil Commitment of Navratil, 799 N.W.2d

643, 650 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011). But we have held

that a right-to-treatment claim is not appropriately raised on appeal of a civil-commitment

order. Navratil, 799 N.W.2d at 651. “The elements of proof at a commitment trial do not

implicate the efficacy of treatment in the MSOP.” In re Civil Commitment of Moen, 837

N.W.2d 40, 49 (Minn. App. 2013), review denied (Minn. Oct. 15, 2013).

       Appellant maintains on review of the district court’s civil commitment order that

he may challenge the constitutionality of his treatment in MSOP, citing earlier Minnesota

Supreme Court cases, In re Joelson, 344 N.W.2d 613 (Minn. 1984) (Joelson I) and In re

Joelson, 385 N.W.2d 810 (Minn. 1986) (Joelson II). In Joelson I, the supreme court

remanded a psychopathic-personality commitment for an evidentiary hearing to consider

the nature and scope of a new treatment program at the Minnesota Security Hospital as it

related to the right to treatment, noting that there had been no opportunity to cross-

examine witnesses about the program’s merits. Joelson I, 344 N.W.2d at 614. After

remand, the supreme court affirmed the district court’s determination that the new

program provided the best treatment available to meet the committed person’s needs.

Joelson II, 385 N.W.2d at 811.


                                            6
       But unlike the Joelson cases, the district court was not required to evaluate the

appropriateness of a new treatment program for civilly committed persons. Unlike the

earlier governing statute, the current statutory scheme plainly requires that a person

committed as an SDP or SPP be placed for treatment at the secure MSOP program unless

it has been shown that another available program satisfies treatment and public-safety

requirements. Compare Minn. Stat. § 253B.18, subd. 1 (1982) (providing for placement

of a mentally ill and dangerous person in “the Minnesota Security Hospital, a regional

center designated by the commissioner or . . . a treatment facility”) with Minn. Stat.

§ 253D.07, subd. 3 (“[T]he court shall commit the person to a secure treatment facility

unless the person establishes by clear and convincing evidence that a less restrictive

treatment program is available . . . .”). See also Minn. Stat. § 253D.02, subd. 13 (Supp.

2013) (defining “secure treatment facility” as “the [MSOP] facility in Moose Lake and

any portion of the [MSOP] operated by the [MSOP] at the Minnesota Security Hospital,”

but not including “services or programs administered by the [MSOP] outside a secure

environment”). Thus, the district court was following the statutory directive of placing

appellant in MSOP unless he satisfied his burden to show a less-restrictive available

program meeting his treatment and public-safety requirements. Appellant’s reliance on

the Joelson cases is inapposite.

       Further, even if we were to address the merits of appellant’s substantive-due-

process challenge, we would reject his argument.      Minnesota statutes are presumed

constitutional, and this court’s “power to declare a statute unconstitutional should be

exercised with extreme caution.” Assoc. Builders & Contractors v. Ventura, 610 N.W.2d


                                           7
293, 299 (Minn. 2000). The Minnesota Supreme Court has held that the SDP statute is

narrowly tailored to serve the state’s compelling interests of assuring public safety and

rehabilitating the mentally ill. In re Linehan, 594 N.W.2d 867, 873–74 (Minn. 1999)

(Linehan IV). The supreme court has also upheld the constitutionality of the SPP statute

against a substantive due-process challenge. In re Blodgett, 510 N.W.2d 910, 916 (Minn.

1994). Civil commitment “is remedial . . . for treatment purposes and . . . not for

purposes of preventive detention.” Call v. Gomez, 535 N.W.2d 312, 320 (Minn. 1995).

Therefore, appellant’s substantive-due-process argument fails.

      Appellant also raises an equal-protection argument, maintaining he was singled

out for disparate treatment from other offenders based on the nature of his status as a sex

offender. But the supreme court has rejected this argument. In re Blodgett, 510 N.W.2d

at 916–17 (holding that SPP statute did not violate equal protection); In re Linehan, 557

N.W.2d 171, 187 (Minn. 1986) (Linehan III) (reaching same result with respect to SDP

statute), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d on

remand, 594 N.W.2d 867 (Minn. 1999). Therefore, the district court did not err by

denying appellant’s motion to dismiss the commitment petition based on equal-protection

grounds.

      Appellant further argues that his commitment as SDP and SPP subjected him to

double jeopardy because “[t]he SDP statute operates as a sentencing statute grafted onto

the civil commitment process.”       But double-jeopardy principles do not apply to

appellant’s commitment as SDP and SPP; the supreme court has noted that the SDP

statute does not require a prior criminal conviction, does not include a scienter


                                            8
requirement, and provides for release if a person is sufficiently rehabilitated. Linehan IV,

594 N.W.2d at 871–72 (citing Kansas v. Hendricks, 521 U.S. 346, 360–70, 117 S. Ct.

2072, 2081–86 (1997)); see also Call, 535 N.W.2d at 320 (rejecting argument that person

committed as a psychopathic personality was subject to double jeopardy).

       Appellant finally maintains that he should be provided a jury trial in this

proceeding because his commitment results in a loss of liberty greater than that imposed

under most criminal sanctions. But the supreme court has held that the constitutional

right to a jury trial does not apply in civil-commitment proceedings.         State ex rel.

Pearson v. Probate Court of Ramsey Cnty., 205 Minn. 545, 556–57, 287 N.W. 297, 303

(1939), aff’d, 309 U.S. 270, 60 S. Ct. 523 (1940). And “[t]here is no clearly established

Supreme Court law which holds that due process requires a jury trial in civil commitment

proceedings or that incorporates the Seventh Amendment right to a jury for such cases.”

Poole v. Goodno, 335 F.3d 705, 710–11 (8th Cir. 2003).

       Affirmed.




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