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In the Matter of G.R.H. v. G.R.H.

February 8, 2011

IN THE MATTER OF G.R.H.
ROZANNA C. LARSON, WARD COUNTY STATE'S ATTORNEY,
PETITIONER AND APPELLEE
v.
G.R.H., RESPONDENT AND
APPELLANT



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Douglas L. Mattson, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme Court

Matter of G.R.H.,

2011 ND 21

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

Dissent filed.

AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

Matter of G.R.H.No. 20100114

[¶1] G.R.H. appeals a district court order denying his petition for discharge from commitment as a sexually dangerous individual. We affirm.

I

[¶2] G.R.H. was civilly committed as a sexually dangerous individual in 2004, and we affirmed the district court's commitment order. Matter of G.R.H., 2006 ND 56, ¶ 3, 711 N.W.2d 587. He requested a discharge hearing in 2005 while this Court was reviewing his initial commitment, but no action was taken on that request pending our decision in the initial matter. In 2006, his next request for discharge was heard and denied by the district court, which found he remained a sexually dangerous individual. G.R.H. requested a third discharge hearing in 2007, and the district court again found by clear and convincing evidence that G.R.H. remained a sexually dangerous individual and denied his petition. We affirmed the district court's decision. Matter of G.R.H., 2008 ND 222, 758 N.W.2d 719.

[¶3] G.R.H. applied for his most recent discharge hearing in April 2009. The evidence at the hearing centered on the testimony and reports of two expert witnesses. The first expert, Lynne Sullivan, Ph.D., testified on behalf of the State. She concluded G.R.H. should remain committed because he meets all three requirements in the classification of a sexually dangerous individual under N.D.C.C. § 25-03.3-01(8). Dr. Sullivan testified she believed G.R.H. met the first requirement, that he previously engaged in sexually predatory conduct, on the basis of his past convictions and other admissions regarding sexual activity with teenage girls. Dr. Sullivan also believed G.R.H. met the second requirement, that he has an acquired or congenital condition manifested by a sexual disorder, because of recurrent, intense sexual thoughts, his arousal by girls going through puberty, and his anti-social personality disorder. Finally, she testified G.R.H. met the third requirement, that he is likely to engage in further sexually predatory conduct, in part because of the findings already mentioned and because of the results of certain risk assessment tools showing G.R.H. is prone to recidivism.

[¶4] Dr. Sullivan also relied in part on some of G.R.H.'s admissions in treatment. In order to progress to the next level of treatment, G.R.H. was required to take a polygraph examination, which he failed. Following this examination, G.R.H. made admissions that were previously unknown to his caretakers. G.R.H. admitted that, against treatment rules, he had engaged in sex with his girlfriend during visitation and used a credit card for phone sex. G.R.H. also admitted to sexual activity with twelve teenage girls. He was demoted to a lower treatment level on the basis of these admissions, which Dr. Sullivan later used in her assessment.

[¶5] Robert Riedel, Ph.D., served as G.R.H.'s independent expert evaluator and agreed with Dr. Sullivan's conclusions on the first two requirements in the classification of a sexually dangerous individual under N.D.C.C. § 25-03.3-01(8). He testified the first requirement was met because G.R.H. has a proven history of sexually predatory conduct. Dr. Riedel also agreed on the second requirement, though he noted G.R.H.'s primary arousal is to adult females, and in the past he "reverted to teenagers because of availability of teenagers and the lack of availability of adult females."

[¶6] Dr. Riedel disagreed with Dr. Sullivan's conclusions on the third requirement, partly because of the risk assessment tests, some of which he declared were "way out of date" and not good predictors of future sexual misconduct. He also noted G.R.H.'s "steady progress" in treatment, his family support system, and his plans for release all lowered his chance of recidivism. On the basis of these findings, Dr. Riedel concluded G.R.H. does not meet the statutory requirements for continued commitment.

[¶7] G.R.H. argued his rights against self-incrimination were violated by using his admissions made in treatment against him, because the proceedings were impermissibly punitive in nature. The district court disagreed and denied his petition for discharge. The court found G.R.H. did not prove by clear and convincing evidence the proceedings were so punitive as to be rendered criminal. It noted treatment normally involves advancements and setbacks, and honesty in treatment is required for an individual to advance to completion. Recognizing that the experts agreed G.R.H. met the first two requirements for classification as a sexually dangerous individual, the court concluded the evidence showed G.R.H. met the third requirement as well. It concluded G.R.H. is likely to engage in further sexually predatory conduct and has a "significant" problem controlling his behavior.

[¶8] On appeal, G.R.H. argues the district court should not have considered his admissions in treatment, because they violated his rights against self-incrimination and are being used to punish him. He also argues there was not clear and convincing evidence he would engage in further acts of sexually predatory conduct. Finally, he contends the district court failed to find he has serious difficulty controlling his behavior, and therefore it could not conclude he is a sexually dangerous individual under N.D.C.C. § 25-03.3-01(8).

[¶9] The district court had jurisdiction of the discharge hearing under N.D. Const. art. VI, § 8, and N.D.C.C. § 25-03.3-02. G.R.H.'s appeal was timely under N.D.C.C. § 25-03.3-19. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 25-03.3-19.

II

[¶10] We apply a modified clearly erroneous standard in reviewing commitments of sexually dangerous individuals. Interest of Maedche, 2010 ND 171, ¶ 9, 788 N.W.2d 331. "We will affirm a district court's commitment order unless the order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence." Id.

[¶11] For the purposes of involuntary civil commitment, N.D.C.C. § 25-03.3-01(8) defines a sexually dangerous individual as:

[A]n individual who is shown to have engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. . . . The United States Supreme Court has held that civil commitment of a sexually dangerous individual cannot be sustained without finding that the individual has serious difficulty controlling his or her behavior. Kansas v. Crane, 534 U.S. 407, 413 (2002). The United States Supreme Court stated this "distinction is necessary lest civil commitment become a mechanism for retribution or general deterrence--functions properly those of criminal law, not civil commitment." Id. at 412 (quotations omitted). We have construed the definition of a sexually dangerous individual to require a nexus between the disorder and dangerousness, which distinguishes such an individual from other dangerous persons. Matter of Hanenberg, 2010 ND 8, ¶ 8, 777 N.W.2d 62. The district court is the best evaluator of conflicting testimony, and it is not the function of this Court to second-guess its conclusions as to which is more credible. Matter of M.D., 2008 ND 208, ¶ 7, 757 N.W.2d 559.

A

[¶12] G.R.H. first argues his admissions during treatment should not have been considered by the district court in denying his petition. These admissions were used by the court in concluding G.R.H. met the third requirement, that he is likely to engage in further acts of sexually predatory conduct that constitute a danger to others. G.R.H. contends N.D.C.C. ch. 25-03.3 is impermissibly punitive in nature because it subjects him to indefinite confinement motivated by retribution and deterrence. He also notes he may be charged criminally under N.D.C.C. ch. 12.1-20 for behavior that may trigger commitment under N.D.C.C. ch. 25-03.3. He argues that allowing a court to consider his statements made in treatment creates an unavoidable dilemma: If he answers questions truthfully, his responses may form the basis for further confinement. If he is uncooperative in answering, his failure to answer can also form the basis for further confinement.

[¶13] G.R.H.'s argument asks us to consider the purpose and effect of N.D.C.C. ch. 25-03.3. Statutory interpretation is a question of law, fully reviewable on appeal. VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 9, 672 N.W.2d 445. Words used in a statute are given their ordinary and commonly understood meaning unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized with related provisions. N.D.C.C. § 1-02-07. When the language of a statute is unambiguous, "the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. We also consider the context of the statutes and the purposes for their enactment. Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719.

[¶14] Chapter 25-03.3, N.D.C.C., is expressly intended to be civil in nature. See, e.g., N.D.C.C. § 25-03.3-03.1 ("[A] recommendation is to be made to a state's attorney for civil commitment of the inmate under this chapter."). We inquire further, however, to assure that a statutory scheme intended to be civil in nature is not so punitive in purpose or effect as to be transformed into a criminal penalty. State v. Kelly, 2001 ND 135, ¶ 16, 631 N.W.2d 167. In Kelly we noted that the factors in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), provide useful indicators in evaluating whether a civil penalty is effectively punitive in application:

(1) the sanction involves an affirmative disability or restraint; (2) it has historically been regarded as a punishment; (3) it comes into play only on a finding of scienter; (4) its operation will promote the traditional aims of punishment--retribution and deterrence; (5) the behavior to which it applies is already a crime; (6) an alternative purpose to which it may rationally be connected is assignable for it; and (7) it appears excessive in relation to the alternative purpose assigned. Kelly, at ¶ 16. By "the clearest proof" the challenger must show the commitment statute is so punitive in form and effect as to render it criminal despite the legislation's intent to the contrary. In re M.D., 1999 ND 160, ¶ 26, 598 N.W.2d 799 (see also United States v. Ursery, 518 U.S. 267, 290 (1996)).

[¶15] We are guided by the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346 (1997), in deciding whether N.D.C.C. ch. 25-03.3 is impermissibly punitive. The United States Supreme Court stated in Hendricks that involuntary commitment statutes will be upheld if they are subject to proper procedures and evidentiary standards. Id. at 357. "It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty." Id. If the State seeks to commit an individual under N.D.C.C. ch. 25-03.3, it must do so within a rigid evidentiary and procedural framework. The State must initially show probable cause for a commitment hearing to take place. N.D.C.C. § 25-03.3-11. At the commitment hearing, nothing less than "clear and convincing evidence" may justify the commitment as a sexually dangerous individual. N.D.C.C. § 25-03.3-13. The court must provide the individual with an independent expert evaluator to participate on the respondent's behalf. N.D.C.C. § 25-03.3-12. A committed individual has a right to petition for discharge annually, which ...


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