Judicial Appeal Panel File No. AP129031
Christopher Ivey, Moose Lake, Minnesota (pro se appellant).
Lori Swanson, Attorney General, Barry R. Greller, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and Bjorkman, Judge.
Appellant challenges a judicial appeal panel's dismissal of his petition for discharge from civil commitment and denial of his motion for amended findings or a new hearing. We affirm as modified.
In May 2004, the district court ordered appellant Christopher Ivey's interim commitment to the Minnesota Sex Offender Program (MSOP) as a sexually dangerous person (SDP) and sexually psychopathic personality (SPP). The court found that when Ivey was age 18 in 1989, he murdered a woman in Germany, after burglarizing her home while she slept and sexually assaulting her; between ages 12 to 22, Ivey intentionally brushed up against women over 500 times and "window peeped" approximately 8, 000 times; Ivey sexually touched women during 15 of 40 burglaries he committed in Carlton County; while incarcerated in 1993, his participation in sex-offender treatment was almost non-existent; in 1994, prison program staff determined that Ivey was at high risk to reoffend and, in 1998, determined that he "had the potential to become a serial sexual murderer." In November 2003, a civil-commitment-review coordinator opined that Ivey was appropriate for civil commitment. The following month, he appeared to fondle himself while being administered a psychological test by a female professional.
In 2004, the district court indeterminately committed Ivey to the MSOP. In June 2011, Ivey petitioned respondent Minnesota Commissioner of Human Services for "Discharge from Civil Commitment" and requested a hearing before a special review board. A review board conducted a hearing in March 2012 and later recommended denying Ivey's petition for discharge. The review board received a psychologist's report that detailed that Ivey withdrew from sex-offender treatment in January 2005, re-enrolled in the summer of 2006, "dis-enrolled" in 2008, and had not resumed sex-offender treatment as of November 2011. He attempted to escape from the Moose Lake facility in November 2010, exposed his genital area to Moose Lake staff in March 2011, and triggered the facility's perimeter alarm in August 2011 in an attempt to change his "living conditions." As of November 2011, Ivey resided in Moose Lake's "Unit Omega, " a unit for clients who "require specialized treatment programming to address behaviors that are disruptive to the general population and/or affect the safety of the facility." His diagnoses consisted of paraphilia "Not Otherwise Specified, " voyeurism, frotteurism, fetishism, exhibitionism, and personality disorder with antisocial and narcissistic features.
Ivey petitioned for a rehearing and reconsideration of his discharge petition by a judicial appeal panel on the bases that (1) the review board's findings were unsupported by the record; (2) "[a]t least" one board member was not qualified to serve on the board; (3) the board is "superfluous as it is being run"; and (4) Minnesota Statutes section 253B.185, subdivision 18 (2010), is "unconstitutional on its face, or, in the alternative, as applied." An appeal panel, comprised of Judges Kathleen Gearin, Leslie Metzen, and Marybeth Dorn, conducted a hearing on January 18, 2013. Ivey participated in the hearing with counsel. The appeal panel received 19 exhibits from the commissioner without objection by Ivey, who called the sole witness, Dr. Nadia Donchenko, a clinical psychologist, to testify.
Dr. Donchenko testified that she interviewed Ivey, reviewed his records from his treatment facility, and issued a report, concluding that insufficient grounds supported Ivey's discharge. Dr. Donchenko noted that Ivey claims that he did not need the MSOP; he claims that his criminal acts were "due to depression and low self-esteem, " which he claims no longer exist; he did not consider the MSOP's groups to be beneficial; he had not progressed out of Phase I of the MSOP in nine years; and Ivey's discharge plan included moving to Florida and possibly selling Viagra that he would acquire from a friend residing in Thailand. Dr. Donchenko opined that Ivey remains sexually dangerous and psychopathic due to his failure to reduce his risk of reoffending; he remains a risk to society, having shown no ability to consistently comply with rules in a controlled environment; and is not ready to live within the community.
The commissioner moved to dismiss Ivey's discharge petition, and the judicial appeal panel granted the motion, finding that no evidence showed that Ivey "is capable of making an acceptable adjustment to open society; is no longer dangerous to the public; and is no longer in need of important treatment and supervision." The appeal panel also found that Ivey failed to produce "any competent evidence to meet his initial burden of production to establish a prima facie case for full discharge."
Ivey moved for a new hearing before the appeal panel and amended findings under Minn. R. Civ. P. 52.02, 59.01–.06. He argued that the appeal panel failed to consider his competent evidence of his changed mental-health diagnosis; erred by considering his sex-offender treatment status and whether he had an acceptable discharge plan; erroneously applied Minn. Stat. § 253B.185, subd. 18 (2010); made clearly erroneous factual findings; and failed to address his constitutional arguments. He also argued that he received ineffective assistance of counsel and, in a motion addendum, argued that the appeal panel failed to view the evidence in the light most favorable to him and erroneously permitted the commissioner to submit exhibits.
On June 13, 2013, the appeal panel denied Ivey's motion for a new hearing and amended findings.
This appeal follows.