Hetland v. Graham

837 N.W.2d 382

2013 ND 171

In the Interest of Matthew GRAHAMEric Hetland, State's Attorney, Petitioner and Appellee

v.Matthew Graham, Respondent and Appellant.

No. 20130090.

Supreme Court of North Dakota.

Sept. 25, 2013.

Eric Bruce Hetland, Kidder County State's Attorney, Steele, ND, for petitioner and appellee.

Justin Jacob Vinje, Bismarck, ND, for respondent and appellant.

CROTHERS, Justice.

[¶ 1] Matthew Graham appeals from a district court order denying his petition for discharge from civil commitment as a sexually dangerous individual. We reverse and remand, concluding the district court erred in extending res judicata to the question whether a committed individual has a congenital or acquired condition manifested by a sexual disorder, personality disorder or other mental disorder or dysfunction.

I

[¶ 2] Graham was adjudicated a delinquent child on April 20, 2004 based on an August 27, 2002 incident in which he french-kissed and exposed his penis to a five-year-old. Graham was fourteen at the time. The number of sexual offenses he committed remains unclear, but during his psychological evaluations, he acknowledged offenses against six minors. Graham spent several years in programs for minor sex offenders before being committed on October 17, 2007 to the North Dakota State Hospital as a sexually dangerous individual.

[¶ 3] Graham petitioned for discharge in late 2008 and received an order for continued commitment on December 9, 2009. Graham's 2010 discharge petition was denied on July 27, 2011. Most recently, Graham petitioned for discharge in August 2012, which was denied on March 7, 2013.

[¶ 4] During Graham's 2011 annual review hearing, Robert Lisota, Ph.D., a State Hospital psychologist, and James Gilbertson, Ph.D., an independent psychologist, filed reports and testified. The experts agreed Graham engaged in sexually predatory conduct but disagreed to whether Graham has a congenital or acquired condition manifested by a sexual disorder, a personality disorder or other mental disorder or dysfunction, and to whether he has difficulty controlling his behavior and is likely to engage in further acts of sexually predatory conduct.

[¶ 5] Dr. Lisota found Graham suffered from pedophilia and personality disorder. Dr. Gilbertson challenged those diagnoses as “too soft.” He found Graham did not suffer from an underlying mental condition that would cause him to be unable to control his sexual impulses in a way that he likely will reoffend. After considering both Dr. Lisota's and Dr. Gilbertson's opinions, the district court found that Graham suffered from a congenital or acquired condition manifested by a personality, sexual or mental disorder, that he is likely to reoffend and that he has difficulty controlling his behavior.

[¶ 6] During Graham's 2013 annual review hearing, Dr. Gilbertson again filed a report and testified. Like in 2011, Dr. Gilbertson disagreed to whether Graham has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder or other mental disorder or dysfunction, and to whether he has difficulty controlling his behavior and is likely to engage in further acts of sexually predatory conduct.

[¶ 7] In 2013, Dr. Gilbertson specifically challenged Graham's original diagnoses of pedophilia and personality disorder. The district court cut short Dr. Gilbertson's testimony regarding the second element because he presented no new evidence anything had changed affecting Graham's diagnoses. The district court found that absent new facts, Graham's diagnoses were res judicata because they were the subject of three unappealed district court orders. It cited In re J.G. to extend res judicata to the second element of the sexually dangerous individual four-step analysis. 2013 ND 26, 827 N.W.2d 341 (finding that whether J.G. engaged in sexually predatory conduct was res judicata and not subject to challenge). The district court concluded Graham remained a sexually dangerous individual because nothing changed since the last adjudication and because Graham's own expert admitted that if the first three factors were met, those factors establish he has serious difficulty controlling his behavior and is likely to reoffend.

II

[¶ 8] Graham argues the district court erred in extending res judicata to the second element of the sexually dangerous individual analysis and N.D.C.C. § 25–03.3–18(4) requires the state to prove at every hearing a committed individual has a congenital or acquired condition that is manifested by a sexual disorder, personality disorder or other mental disorder or dysfunction.

[¶ 9] “We review civil commitments of sexually dangerous individuals under a modified clearly erroneous standard of review.” Interest of G.L.D., 2011 ND 52, ¶ 5, 795 N.W.2d 346. “We will affirm a district court's order denying a petition for discharge unless it is induced by an erroneous view of the law or we are firmly convinced it is not supported by clear and convincing evidence.” Id.

[¶ 10] At a commitment proceeding, the State must prove by clear and convincing evidence that the person is a sexually dangerous individual. N.D.C.C. § 25–03.3–13. When a committed individual petitions for discharge, the State must prove by clear and convincing evidence the individual remains a sexually dangerous individual. N.D.C.C. § 25–03.3–18(4). The State must prove three statutory elements and establish an additional constitutional requirement to satisfy substantive due process requirements. In re Vantreece, 2009 ND 152, ¶ 6, 771 N.W.2d 585.

[¶ 11] The statutory elements are:

“an individual [1] who is shown to have engaged in sexually predatory conduct and [2] who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction [3] 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.”

N.D.C.C. § 25–03.3–01(8). To comport with the language of the statute and constitutional substantive due process concerns, this Court:

“construe[s] the definition of a sexually dangerous individual to mean that proof of a nexus between the requisite disorder and dangerousness encompasses 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.”

Matter of G.R.H., 2006 ND 56, ¶ 18, 711 N.W.2d 587. The fourth step is a constitutionally required inquiry whether the individual has difficulty controlling his behavior. In re E.W.F., 2008 ND 130, ¶ 10, 751 N.W.2d 686.

[¶ 12] Graham correctly points out that N.D.C.C. § 25–03.3–18(4) places the burden of proof on the State to show the committed person remains a sexually dangerous individual. Element one is proven by a prior adjudication that respondent engaged in sexually predatory conduct.In re J.G., 2013 ND 26, ¶ 10, 827 N.W.2d 341. Res judicata prevents relitigation of that inquiry. See id. Here, the question of whether Graham engaged in sexually predatory conduct was addressed in three prior sexually...