In re Interest of J.R.

• Decision Date: 13 March 2009
• Docket Number: No. S-07-1300.,S-07-1300.
• Citation: 277 Neb. 362,762 N.W.2d 305
• Parties: In re INTEREST OF J.R., alleged to be a dangerous sex offender. J.R., Appellant, v. Mental Health Board of the Fourth Judicial District, Appellee.
• Court: Nebraska Supreme Court

762 N.W.2d 305

277 Neb. 362

In re INTEREST OF J.R., alleged to be a dangerous sex offender J.R., Appellant, v. Mental Health Board of the Fourth Judicial District, Appellee.

No. S-07-1300.

Supreme Court of Nebraska.

March 13, 2009.

Thomas C. Riley, Douglas County Public Defender and Sean M. Conway, for appellant.

Jeffrey J. Lux, Deputy Douglas County Attorney and Michael W. Jensen, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

I. NATURE OF CASE

J.R. challenges the constitutionality of the Sex Offender Commitment Act (SOCA)¹ as a violation of equal protection and double jeopardy, and as an impermissible ex post facto law under the U.S. Constitution and the Nebraska Constitution. J.R. also challenges the sufficiency of the evidence supporting the decisions of the Mental Health Board of the Fourth Judicial District (the Board) and the district court adjudging him to be a dangerous sex offender in need of involuntary, inpatient treatment under SOCA.

II. BACKGROUND

On October 3, 2000, J.R. was convicted of first degree sexual assault on a child for sexually assaulting his girlfriend's daughter. The sexual assaults occurred over a period of years, starting when the child was in the second grade. The assaults continued until the seventh grade and progressed from fondling to sexual intercourse. Two months before being charged, J.R. sought psychotherapy because he "knew that he had a problem." But J.R. was unable to complete his recommended treatment before being sentenced to 10 to 12 years' imprisonment for the assaults.

While in prison, J.R. participated in an inpatient sex-offender program from May 2001 to December 2002. J.R. did not complete this treatment, however, because he was terminated from the program for unsatisfactory progress and an unrelated laundry violation. J.R. did complete other behavior management groups while in prison.

J.R. was scheduled for discharge from prison on December 12, 2006. On November 6, the deputy county attorney (the State) filed a petition with the Board seeking to have J.R. adjudged to be a dangerous sex offender as defined by Neb.Rev. Stat. § 83-174.01(1)(a) (Cum.Supp.2008) and, accordingly, to have him placed in the custody of the Department of Health and Human Services for further treatment.

The Board held a hearing on January 9, 2007. The Board found by clear and convincing evidence that J.R. was a mentally ill, dangerous sex offender likely to reoffend and that inpatient treatment through the Department of Health and Human Services was the least restrictive treatment plan.

At the hearing, the State entered into evidence testimony from Dr. Stephen Skulsky, a licensed and certified clinical psychologist who evaluated J.R. on November 20, 2006. As part of J.R.'s evaluation, Skulsky obtained information about J.R.'s history. Specifically, he reviewed a letter from the Douglas County Attorney's office summarizing J.R.'s situation and an incident report regarding the sexual abuse. Skulsky also reviewed a letter from Dr Mark Weilage, a clinical psychologist at the Department of Correctional Services.

Weilage evaluated J.R. in 2006. His letter contained the results of a "Static-99" measure, a test customarily used in commitment proceedings to assist clinicians in forming an opinion as to the level of risk that an offender will reoffend. J.R. scored a zero, the lowest score on the Static-99 measure, demonstrating a low risk for reoffending. Weilage opined, however, that the Static-99 measure may underestimate J.R.'s risk for reoffending. Weilage further noted that the treatment staff still had concerns about J.R.'s unmet treatment needs. Nevertheless, it was Weilage's opinion that there was insufficient evidence in J.R.'s file to indicate that he would meet the criteria of a dangerous sex offender.

J.R. asserted that previous evaluations had been conducted, but such evaluations were not included in the record. Skulsky did not consider these other evaluations because he was not aware of them. Skulsky indicated that he had also evaluated J.R. in 2000, but that he did not use that evaluation because of an issue regarding payment. Skulsky's previous evaluation was also not introduced into evidence.

In addition to the documents already listed, Skulsky conducted an in-person evaluation of J.R. and administered various personality tests, including the "Minnesota Multi-Phasic Personality Inventory-Form 2"; the Rorschach, or inkblot test; the "Thematic Apperception" test; projective drawings; and an "Incomplete Sentences Blank." Skulsky noted that J.R.'s history included emotional, physical, and sexual abuse by his stepfather, substance abuse, and inappropriate sexual behaviors for which he was incarcerated. J.R. and Skulsky also discussed the 18 months of sex offender treatment J.R. received in prison. Skulsky testified that J.R. wanted treatment and that J.R. was disappointed that he did not have the opportunity to complete treatment while in prison. J.R. indicated he was willing to obtain treatment after being released from prison.

According to Skulsky, the test results revealed that J.R. is egocentric and irresponsible. The tests also revealed that J.R. is an "arousal seeker" and has problems controlling his emotions and his sexual urges. Skulsky diagnosed J.R., to a reasonable degree of psychological certainty, with (1) dysthymic disorder, (2) personality disorder "NOS," (3) cannabis or marijuana dependence, and (4) pedophilia. Skulsky explained that despite the fact that J.R. had a "good understanding of what had happened," J.R. was still a pedophile. Skulsky testified that without successfully completing treatment, J.R. would have a hard time clearly perceiving things and would be likely to recidivate.

Skulsky recommended 6 months of involuntary, inpatient treatment to finish the sex offender program. Skulsky concluded that this was the least restrictive treatment alternative "[b]ecause of the possible negative outcome given the dangerousness of his likely repeating the offense, it's too great a risk to run for the safety of society based on my professional opinion. That's why, the fact that he's still dangerous."

Based on this evidence, the Board found J.R. to be a dangerous sex offender under § 83-174.01(1)(a) and committed him to secure inpatient treatment. The district court affirmed. We granted J.R.'s petition to bypass the Nebraska Court of Appeals.

III. ASSIGNMENTS OF ERROR

J.R. asserts, renumbered and restated, three assignments of error. First, J.R. asserts that SOCA is unconstitutional under the U.S. Constitution and the Nebraska Constitution, because (1) it constitutes an impermissible ex post facto law, (2) it violates double jeopardy, and (3) it violates equal protection. Second, J.R. asserts that the Board erred in finding that J.R. is a dangerous sex offender. Third, J.R. asserts that the Board erred in finding that neither voluntary hospitalization nor other treatment alternatives less restrictive were available as required by § 71-1209.

IV. STANDARD OF REVIEW

Whether a statute is constitutional is a question of law; accordingly, we are obligated to reach a conclusion independent of the decision reached by the court below.² A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.³ All reasonable intendments must be indulged to support the constitutionality of legislative acts, including classifications adopted by the Legislature.⁴

The district court reviews the determination of a mental health board de novo on the record.⁵ In reviewing a district court's judgment, we will affirm the judgment unless we find, as a matter of law, that the judgment is not supported by clear and convincing evidence.⁶

V. ANALYSIS

This is the first time we have considered constitutional challenges under SOCA. As such, we begin our analysis with a brief overview of SOCA.

In 2006, the Nebraska Legislature enacted SOCA.⁷ The purpose of SOCA "is to provide for the court-ordered treatment of sex offenders who have completed their sentences but continue to pose a threat of harm to others."⁸ SOCA provides a separate legal standard for sex offenders, which allows dangerous sex offenders to meet the standards of a mentally ill, dangerous sex offender who would not meet the traditional standards of mentally ill and dangerous under the Nebraska Mental Health Commitment Act (MHCA).⁹

Section 71-1203 provides that the definition of a dangerous sex offender under SOCA is found in § 83-174.01. A dangerous sex offender is

(a) a person who suffers from a mental illness which makes the person likely to engage in repeat acts of sexual violence, who has been convicted of one or more sex offenses, and who is substantially unable to control his or her criminal behavior or (b) a person with a personality disorder which makes the person likely to engage in repeat acts of sexual violence, who has been convicted of two or more sex offenses, and who is substantially unable to control his or her criminal behavior.¹⁰

In other words, the civil commitment procedures of SOCA apply to presently confined persons who, like J.R., have been convicted of one or more sex offenses and are scheduled for release.

Under SOCA, the Board must hold a hearing to determine whether there is clear and convincing evidence that the subject is a dangerous sex offender.¹¹ But before the hearing, a law enforcement officer who has probable cause to believe the subject is a dangerous sex offender who is likely to reoffend before the Board proceedings may place the subject in emergency protective custody or have the subject continue his or her custody if already in custody.¹² While other "mentally ill and dangerous" persons held in emergency protective custody are held in "an appropriate and available medical facility"¹³ if there is probable cause to conclude they are a danger while...