Opinion
No. C2-97-199.
Filed April 15, 1997.
Appeal from the District Court, Kandiyohi County, File No. P87961554.
Marilyn B. Knudsen, (for appellant Carl Anderson)
Hubert H. Humphrey, III, Attorney General, Alan Held, Assistant Attorneys General, (for respondent)
Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
This appeal in a commitment proceeding is from a trial court order certifying questions, an order addressing various motions and denying motions to dismiss, and an order requiring that Carl Anderson be held pending resolution of the petitions for his commitment. Anderson also filed a petition for accelerated review and consolidation with the supreme court, which has not yet issued a ruling. We dismiss the appeal as being taken from nonappealable orders.
DECISION
This appeal involves commitment proceedings. Briefly, in early May 1996, two petitions to commit Anderson as a sexually dangerous person were filed and dismissed. Shortly thereafter, the juvenile court found Anderson had violated probation by failing to complete sex offender treatment and ordered him held in detention until his 19th birthday, December 27, 1996. Two more petitions for commitment as both a sexually dangerous person and a sexual psychopathic personality were filed in November and December 1996. In several hearings and motions, the parties brought various issues before the trial court, resulting in the orders here on appeal. Counsel advised this court at oral argument that the hearing to determine whether Anderson should be committed has not yet been held.
Before reaching the merits of Anderson's claims, we address whether the orders he challenges are appealable. Generally, an appeal may be taken only as provided in Minn.R.Civ.App.P. 103.03. An appeal from an order in a commitment proceeding may be taken "from any order entered under this chapter as in other civil cases." Minn. Stat. § 253B.23, subd. 7 (1996). Interlocutory orders usually are not appealable. Emme v. C.O.M.B., Inc. , 418 N.W.2d 176, 179 (Minn. 1988) (thrust of appellate rules is that appeals should not be brought piecemeal).
Anderson appealed from a December 26, 1996, trial court order addressing a variety of issues raised in the December 18 and December 24, 1996, hearings. Anderson characterizes this as an order denying a motion to dismiss and argues in part that the trial court had no jurisdiction to proceed due to flaws concerning the petition. An order denying a motion to dismiss based on lack of personal jurisdiction is appealable. NFD, Inc. v. Stratford Leasing , 427 N.W.2d 757, 758 (Minn.App. 1988). Anderson's only personal jurisdiction claim was cured by proper service, and he does not raise this issue on appeal.
The December 26 order essentially memorialized the oral orders issued by the trial court on December 18, 1996. This court held in a January 8, 1997, special term order that the December 18 orders were not appealable and dismissed Anderson's direct appeal. In re Anderson , Nos. C1-96-2581, C3-96-2582 (Minn.App. Jan. 8, 1997). Likewise, the appeal from the December 26, 1996 order is dismissed as being taken from an interlocutory, nonappealable order. See Emme , 418 N.W.2d at 179.
Anderson next challenges the trial court's order, signed December 27, 1996, and filed on December 30, 1996 (December 27 order), in which it found by a preponderance of the evidence that serious imminent physical harm to Anderson or others was likely if he was not confined pursuant to Minn. Stat. § 253B.07, subd. 7(d) (1996), pending the hearing on the merits. This is also an interlocutory order from which a direct appeal may not be taken.
Anderson also appeals from the trial court's December 26, 1996 (December 26 certified questions order) order certifying questions for appeal, expressly incorporating its December 26, 1996, order denying Anderson's motion to dismiss. Minn.R.Civ.App.P. 103.03(h) provides an appeal may be taken
if the trial court certifies that the question presented is important and doubtful, from an order which denies a motion to dismiss for failure to state a claim upon which relief can be granted or from an order which denies a motion for summary judgment.
Thus, review of certified questions is proper only when the trial court enters an order denying a motion to dismiss for failure to state a claim or for summary judgment. Emme , 418 N.W.2d at 179. Further, granting the motion must result in adjudication of all the claims. Id. at 179. The trial court must make specific findings of fact on which its ruling is based and specify the precise legal question on which it seeks certification. Duxor Inv. Aktiengesellschaft v. Investment Rarities, Inc. , 413 N.W.2d 502, 504 (Minn. 1987). The trial court must resolve questions of fact and law before certifying it. F H Inv. Co. v. Sackman-Gilliland Corp. , 305 Minn. 155, 157-58, 232 N.W.2d 769, 772 (1975). Only the question that is certified to the appellate court is reviewable. Lorshbough v. Township of Buzzle , 258 N.W.2d 96, 98 n. 3 (Minn. 1977). This court may not issue advisory opinions in answering certified questions.
The trial court must certify that the question is both important and doubtful. Minn.R.Civ.P. 103.03(h). A question is "doubtful" only if no controlling precedent exists. Emme , 418 N.W.2d at 179.
That the question is one of first impression is not, however, of itself sufficient to justify certification as doubtful; the question should be one on which there is substantial ground for a difference of opinion.
Id. at 180. In addition to being doubtful, the question must be "important." Id. Importance depends, in large measure, on the weighing of probabilities and increases with the probability that resolution of the question will have statewide impact, the probability of reversal, and with the amount of harm inflicted on the parties by a wrong ruling by the trial court. Id. In contrast, importance decreases with the probability of affirmance, the probability trial will moot the issue, and the probability that reversal of the trial court will not terminate the action or relieve the parties of any significant burden. Id.
The questions, as set by the trial court's certification order, are as follows:
a) Does a Minn. Stat. § 253B.07, Subd. 7 Preliminary Hearing to determine whether to hold a Respondent in confinement at a hospital or treatment facility because "serious imminent physical harm to the patient or others is likely if the proposed patient is not confined" satisfy the statutory requirement that "a hearing" be held within a maximum of 44 days from the date of the filing of a petition under Minn. Stat. § 253B.08, Subd. 1?
b) Is the Respondent's right to liberty at the end of the period of incarceration for a criminal sexual conduct conviction a substantive right that outweighs technical errors in a Petition for Indeterminate Commitment as a Sexually Dangerous Person or Sexual Psychopathic Personality or in the procedural history following the filing of such a petition?
See In re Grafstrom , 490 N.W.2d 632 (Minn.Ct.App. 1992).
c) Does the interest in public safety outweigh the Respondent's right to liberty at the end of his incarceration for criminal sexual conduct where:
i) Respondent's release from custody and from probation occur as a matter of law on his nineteenth birthday under extended Juvenile Jurisdiction, considering:
a) The serious nature of the offenses;
b) The length of sentence which would have been received had the offenses been committed as an adult;
ii) Respondent has failed to complete in-patient sexual offender treatment;
iii) Respondent's failure to complete treatment constituted a probation violation resulting in the order of May 21, 1996, extending custody to respondent's 19th birthday;
iv) A Petition for Indeterminate Commitment as a Sexual Psychopathic Personality or Sexually Dangerous Person is filed pursuant to Minn. Stat. § 253B.02, Subd. 18a and 18B?
d) When the Respondent's attorney voluntarily sets an examination by the Court's First Examiner after the expiration of the 44 day time limit established by Minn. Stat. § 253B.08, subd. 1, does that constitute a waiver of Respondent's right to a hearing on the petition within the 44 days under Minn. Stat. § 253B.08, subd. 1?
e) Does Minn.R.Civ.Pro. Rule 41 place limits on the number of petitions that can sequentially be brought seeking indeterminate commitment of a person as a Sexual Psychopathic Personality and Sexually Dangerous Person pursuant to Minn. Stat. § 253B.02, subd. 18a and 18b without a showing of additional evidence to support subsequent petitions?
f) Does the mandatory language of Minn. Stat. § 253B.08, subd. 1, ". . . When any proposed patient has not had a hearing on a petition filed for a person's commitment within the allowed time, the proceedings shall be dismissed. . . ." indicate an intent by the legislature to limit the potential restriction in one's liberty by the filing of successive, indefinite petitions for commitment without additional evidence?
g) Does the phrase "the proceedings shall be dismissed" of Minn. Stat. § 253B.08, subd. 1 indicate a legislative intent that no successive petition can be filed without additional evidence? The language of the statute dismisses "the proceedings," not "the petition."
The certification order will be examined in light of the requirements for a properly certified question. Anderson moved to dismiss for failure to state a claim on which relief may be granted, as well as for many other reasons. The trial court denied Anderson's motion to dismiss in its December 26 order and separately certified questions that explicitly incorporated the December 26 order. Minn.R.Civ.App.P. 103.03(h) (appeal may be taken from order denying motion to dismiss for failure to state claim upon which relief can be granted if court certifies questions).
The next issue is whether granting the motion would be dispositive of the entire action. Emme , 418 N.W.2d at 179. The questions regarding the motion to dismiss the petitions, if reversed, could end the entire proceeding.
The third issue is whether the trial court specified the precise legal questions at issue, made specific findings of fact, and resolved the questions. Duxor Inv. , 413 N.W.2d at 504; F H Inv. Co. , 305 Minn. at 157-58, 232 N.W.2d at 772. While this court was able to determine the answers to some of the questions by referring to the December 26 and December 27 orders, the trial court answers as to other questions were not clear.
Each certified question will be analyzed further to determine whether the requisites are met. We note generally that the issues raised in the certified questions do not seem to raise important issues of statewide importance and appear to be more vexing than doubtful. See Emme , 418 N.W.2d at 179 ("not every vexing question is important and doubtful").
a) Does a Minn. Stat. § 253B.07, Subd. 7, Preliminary Hearing to determine whether to hold a Respondent in confinement at a hospital or treatment facility because "serious imminent physical harm to the patient or others is likely if the proposed patient is not confined" satisfy the statutory requirement that "a hearing" be held within a maximum of 44 days from the date of the filing of a petition under Minn. Stat. § 253B.08, Subd. 1?
First, the court did not answer this precise question in its December 26 order and instead held that the motions and argument on December 18 met the requirement of a hearing. Next, this is a narrow issue, and it is unlikely that resolution of this question would have statewide impact. Cf. Foley v. Honeywell , 488 N.W.2d 268, 270 (Minn. 1992) (certified question accepted where issue as to definition of compensable personal injury could have statewide impact, although not clear issue is doubtful). Certified question "a)" is not properly certified.
b) Is the Respondent's right to liberty at the end of the period of incarceration for a criminal sexual conduct conviction a substantive right that outweighs technical errors in a Petition for Indeterminate Commitment as a Sexually Dangerous Person or Sexual Psychopathic Personality or in the procedural history following the filing of such a petition?
See In re Grafstrom , 490 N.W.2d 632 (Minn.Ct.App. 1992).
A trial court that certifies a question must specify the exact legal question on which it seeks certification, must make specific fact findings on which its ruling is based, and must resolve the issue. Duxor Inv. , 413 N.W.2d at 504; F H Inv. Co. , 305 Minn. at 157-58, 232 N.W.2d at 772. We are unable to discern the findings of fact on which this question is based and do not perceive the precise legal question at issue or the trial court's resolution of the issue. Therefore, rather than speculate, we decline to review this question.
c) Does the interest in public safety outweigh the Respondent's right to liberty at the end of his incarceration for criminal sexual conduct where:
i) Respondent's release from custody and from probation occur as a matter of law on his nineteenth birthday under extended Juvenile Jurisdiction, considering:
a) The serious nature of the offenses;
b) The length of sentence which would have been received had the offenses been committed as an adult;
ii) Respondent has failed to complete in-patient sexual offender treatment;
iii) Respondent's failure to complete treatment constituted a probation violation resulting in the order of May 21, 1996, extending custody to respondent's 19th birthday;
iv) A Petition for Indeterminate Commitment as a Sexual Psychopathic Personality or Sexually Dangerous Person is filed pursuant to Minn. Stat. § 253B.02, Subd. 18a and 18B?
Again, we are unable to discern the findings of fact and precise legal question raised. Id. We presume this may be related to the trial court's December 27 order holding Anderson pending the hearing on the merits pursuant to Minn. Stat. § 253B.07, subd. 7(d). However, the trial court does not cite this section in its question. Further, the determination is a very fact-specific question that appears more rhetorical than important or doubtful. Emme , 418 N.W.2d at 179-80; see Minn. Stat. § 253B.07, subd. 7(d) (court may order hold on determination that "serious imminent physical harm" is likely if proposed patient not confined). Again, this question is not properly certified.
d) When the Respondent's attorney voluntarily sets an examination by the Court's First Examiner after the expiration of the 44 day time limit established by Minn. Stat. § 253B.08, subd. 1, does that constitute a waiver of Respondent's right to a hearing on the petition within the 44 days under Minn. Stat. § 253B.08, subd. 1?
First, the trial court appeared to base its holding on a determination as to Anderson's attorney's experience and knowledge of the case, as well as the fact the examination was set after the 44-day limit. This is another very fact-specific question that is neither important nor doubtful. Id. Further, it is the type of question that should be addressed on appeal rather than through a certified question. Duxor Inv. , 413 N.W.2d at 504; see In re Buckhalton , 503 N.W.2d 148, 151 (Minn.App. 1993) (addressing waiver issue), aff'd , 518 N.W.2d 531 (Minn. 1994). This question is not presently reviewable.
e) Does Minn.R.Civ.Pro. Rule 41 place limits on the number of petitions that can sequentially be brought seeking indeterminate commitment of a person as a Sexual Psychopathic Personality and Sexually Dangerous Person pursuant to Minn. Stat. § 253B.02, subd. 18a and 18b without a showing of additional evidence to support subsequent petitions?
f) Does the mandatory language of Minn. Stat. § 253B.08, subd. 1, "* * * When any proposed patient has not had a hearing on a petition filed for a person's commitment within the allowed time, the proceedings shall be dismissed. * * *" indicate an intent by the legislature to limit the potential restriction in one's liberty by the filing of successive, indefinite petitions for commitment without additional evidence?
g) Does the phrase "the proceedings shall be dismissed" of Minn. Stat. § 253B.08, subd. 1 indicate a legislative intent that no successive petition can be filed without additional evidence? The language of the statute dismisses "the proceedings," not "the petition."
The trial court ruling that appears to address this question stated:
The Minnesota Civil Commitment Act and Rules do not prohibit the filing of subsequent petitions after an earlier petition has been dismissed without prejudice.
It does not appear that the court specifically answered the above questions. Further, the questions, as put to us, are not tied to the specific facts of this case. This case does not involve a succession of indefinite petitions without additional evidence, but is more complex. The first two that were dismissed sought commitment only as a sexually dangerous person, while the third and fourth were also for commitment as a sexually psychopathic personality. The questions, as posed, seek advisory rulings and should not be certified until specifically answered by the trial court. Further, the questions do not present issues that are doubtful and of statewide importance. See Emme , 418 N.W.2d at 179-80.
Because the questions raised are not properly certified, the trial court's orders are not appealable.