In the Interest of T.A.G.
T.A.G., Respondent and Appellant Julie Lawyer, Petitioner and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grmstemer, Judge.
A. Lawyer, Burleigh County State's Attorney, Bismarck,
ND, petitioner and appellee.
J. Morrow, Grand Forks, ND, for respondent and appellant.
T.A.G. appeals from an order denying discharge from
commitment as a sexually dangerous individual. He argues the
findings are insufficient to demonstrate he has serious
difficulty controlling his behavior. The order denying T.
A.G.' s petition for discharge is reversed because the
findings are insufficient to conclude the due process
requirement has been met under Kansas v. Crane, 534
U.S. 407 (2002).
In 2005, near the end of a five-year sentence for conviction
of corruption or solicitation of a minor, the State
successfully petitioned to commit T.A.G. as a sexually
dangerous individual. In 2006,2010,2011, and 2012, T.A.G.
unsuccessfully petitioned for discharge. T.A.G. appealed the
2012 order and this Court affirmed. Interest of
T.A.G., 2015 ND 256, 872 N.W.2d 633.
In 2017 T.A.G. requested a discharge hearing under N.D.C.C.
§ 25-03.3-18. On September 7, 2018, the district court
had a hearing and heard testimony from an examining
psychologist and T.A.G. On October 17,2018, the court denied
T.A.G.'s petition for discharge. On May 6, 2019, the case
was remanded for additional findings of fact on whether
T.A.G. was likely to re-offend and had serious difficulty
controlling his behavior. Interest of T.A.G., 2019
ND 115, 926 N.W.2d 702. On May 9, 2019, the district court
made additional findings of fact, conclusions of law and
issued an order for continuing commitment.
This Court reviews civil commitments of sexually dangerous
individuals under a modified clearly erroneous standard, and
we will affirm a district court decision unless it is induced
by an erroneous view of the law, or we are firmly convinced
the decision is not supported by clear and convincing
evidence. Interest of Tanner, 2017 ND 153, ¶ 4,
897 N.W.2d 901. The burden is on the State to prove by clear
and convincing evidence the petitioner remains a sexually
dangerous individual. N.D.C.C. § 25-03.3-18(4). The
State must prove three statutory elements to show the
petitioner remains a sexually dangerous individual under
N.D.C.C. § 25-03.3-01(8):
" [the individual] engaged in sexually predatory
conduct and ... 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 State also must meet substantive due process requirements
by proving the individual has serious difficulty in
controlling his behavior. Interest of Tanner, 2017ND
153,¶5, 897N.W.2d 901. Consistent with the holding in
Kansas v. Crane, 534 U.S. 407 (2002), the definition
of a sexually dangerous individual requires "proof of a
nexus between the requisite disorder and dangerousness to
encompass proof that the disorder involves serious difficulty
in controlling behavior and suffices to distinguish a
dangerous sexual offender whose disorder subjects him to
civil commitment from the dangerous but typical recidivist in
the ordinary criminal case." Interest of
Carter, 2019 ND 67, ¶ 4, 924 N.W.2d 112 (internal
quotation marks omitted). Neither our law nor Kansas v.
Crane, "require the conduct evidencing the
individual's serious difficulty in controlling his
behavior to be sexual in nature." In re
Wolff, 2011 ND 76, ¶ 7, 796 N.W.2d 644.
Constitutional considerations require a causal connection
between the disorder and inability to control behavior, which
would likely result in future sexually predatory conduct.
Tanner,2017 ND 153, ¶ 5, 897 N.W.2d 901;
Matter of J.M.,2019 ND 125, ¶ 9, 927 N.W.2d
422. The district court may consider non-sexual conduct
demonstrating a serious difficulty controlling behavior, but
the presence of a mental disorder or condition alone does not
satisfy the requirement of clear and convincing evidence the
individual is likely to engage in further sexually predatory
conduct. J.M.,2019 ND 125, ¶ 9, 927 N.W.2d
422. The district court must state the ...