S.J. v. Mental Health Bd. of the Fourth Judicial Dist. (In re S.J.)

• Decision Date: 16 March 2012
• Docket Number: No. S–11–314.,S–11–314.
• Citation: 810 N.W.2d 720,283 Neb. 507
• Parties: In re Interest of S.J., alleged to be a dangerous sex offender.S.J., appellant, v. Mental Health Board of the Fourth Judicial District, appellee.
• Court: Nebraska Supreme Court

283 Neb. 507

810 N.W.2d 720

In re Interest of S.J., alleged to be a dangerous sex offender.S.J., appellant,

v.Mental Health Board of the Fourth Judicial District, appellee.

No. S–11–314.

Supreme Court of Nebraska.

March 16, 2012.

Syllabus by the Court

1. Mental Health: Judgments: Appeal and Error. The district court reviews the determination of a mental health board de novo on the record. In reviewing a district court's judgment, an appellate court will affirm unless it finds, as a matter of law, that clear and convincing evidence does not support the judgment.

2. Constitutional Law: Due Process. The determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

3. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.

4. Due Process. The Due Process Clause applies when government action deprives a person of liberty or property; accordingly, when there is a claimed denial of due process, a court must consider the nature of the individual's claimed interest.

5. Due Process. A claim that one is being deprived of a liberty interest without due process of law is typically examined in three stages. The question in the first stage is whether there is a protected liberty interest at stake. If so, the analysis proceeds to the second stage, in which it is determined what procedural protections are required. Upon the resolution of that issue, the analysis moves on to the third and final stage, in which the facts of the case are examined to ascertain whether there was a denial of that process which was due.

6. Due Process: Mental Health: Convicted Sex Offender. A liberty interest is implicated if a subject is committed to inpatient treatment pursuant to the Sex Offender Commitment Act.

7. Due Process: Notice. Due process does not guarantee an individual any particular form of state procedure. Instead, the requirements of due process are satisfied if a person has reasonable notice and an opportunity to be heard appropriate to the nature of the proceeding and the character of the rights which might be affected by it.

8. Due Process: Administrative Law: Recusal: Presumptions: Proof. Due process requires a neutral, or unbiased, adjudicatory decisionmaker. Such decisionmakers serve with a presumption of honesty and integrity. A party seeking to disqualify an adjudicator because of bias or prejudice bears the heavy burden of overcoming the presumption of impartiality.

Thomas C. Riley, Douglas County Public Defender, and Zoë R. Wade for appellant.

Jeffrey J. Lux, Deputy Douglas County Attorney, for appellee.

HEAVICAN, C.J., CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ., and SIEVERS and CASSEL, Judges.

MILLER–LERMAN, J.

NATURE OF CASE

S.J. appeals the order of the district court for Douglas County which affirmed the order of the Mental Health Board of the Fourth Judicial District (the Board) committing S.J. as a dangerous sex offender. The court rejected S.J.'s arguments that his due process rights had been violated and concluded that the State had met its burden to prove by clear and convincing evidence that S.J. was a dangerous sex offender and that continued inpatient treatment was the least restrictive alternative available. We affirm.

STATEMENT OF FACTS

The Douglas County Attorney filed a petition with the Board alleging that S.J. was a dangerous sex offender within the meaning of Nebraska's Sex Offender Commitment Act (SOCA), Neb.Rev.Stat. § 71–1201 et seq. (Reissue 2009). Following an initial hearing held April 30, 2009, the Board found that S.J. had been convicted of two sex offenses, that he suffered from the mental illness pedophilia, that such illness made him likely to engage in repeat acts of sexual violence, and that he was substantially unable to control his criminal behavior. The Board therefore concluded that S.J. was a dangerous sex offender. But the Board rejected the inpatient treatment plan recommended by the State because it found that inpatient treatment was too restrictive and not warranted by the evidence. The Board ordered the county attorney and the public defender to develop an outpatient treatment plan; the Board indicated it would seek assistance from the Department of Health and Human Services (DHHS) in developing an outpatient program.

At a July 2, 2009, review hearing, it was reported that despite extensive efforts, an appropriate outpatient program had not been found due to problems with cost and availability of providers. The Board therefore ordered S.J. to be conditionally placed at the Norfolk Regional Center (NRC) for inpatient treatment but ordered DHHS to undertake all necessary efforts to place S.J. in a suitable outpatient program. On October 29, it was reported to the Board that S.J. was still being held in inpatient treatment at NRC. The Board ordered DHHS to continue searching for suitable outpatient treatment and ordered that if an appropriate outpatient plan was not arranged by December 28, the commitment would be dismissed.

On December 10, 2009, NRC staff who had evaluated S.J. filed a report with the Board in which they collectively opined that S.J. presented a high risk of recidivism and that the least restrictive treatment for him was continued inpatient treatment at NRC. The Board therefore set a hearing for January 12, 2010.

At the January 12, 2010, hearing, a psychologist from NRC testified that during testing at NRC, several additional risk factors came to light that had not been noted in previous testing of S.J. and that such additional factors raised S.J.'s risk to reoffend to high compared to the medium risk at which he had previously been assessed. The psychologist testified that such factors warranted therapeutic attention and opined that the least restrictive alternative for S.J. which would provide appropriate therapy was inpatient treatment. A psychiatrist from NRC also testified at the hearing and concurred in the opinion that inpatient treatment was the least restrictive alternative for S.J. The psychiatrist testified that S.J.'s high risk to reoffend “really waives” the option of outpatient treatment and that an inpatient alternative was required for effective treatment. Following the hearing, the Board concluded that inpatient treatment at NRC was the least restrictive alternative presently “available” and inpatient commitment was ordered.

S.J. appealed the Board's January 12, 2010, order to the district court for Douglas County. He asserted that his procedural due process rights, his substantive due process rights, and his right to an adjudication before an impartial decisionmaker had been violated. He also asserted that the Board erred when it found by clear and convincing evidence that he was a dangerous sex offender and that inpatient treatment was the least restrictive treatment alternative.

In its order filed March 20, 2011, as an initial matter, the district court noted its awareness of § 71–1209(6) of SOCA which provides that inpatient treatment should “only be considered as a treatment alternative of last resort.” The court reviewed the procedures and protections required under SOCA and concluded that such procedures “provide subjects with a meaningful opportunity to be heard regarding their commitment as a dangerous sex offender, both prior to and after that determination is made.” The district court concluded that SOCA provided adequate procedural due process in connection with commitment decisions thereunder.

As to the instant case, the court noted that S.J. made no claim that he had been denied any of the procedures required by SOCA. The court specifically rejected S.J.'s argument that SOCA violates procedural due process because it treats inpatient and outpatient treatment as equivalent alternatives, thus allowing commitment to either program based on what is available. The court disagreed with S.J.'s reading of SOCA and found that SOCA did not authorize the Board to arbitrarily order treatment solely on the basis of availability but instead required the Board to consider all treatment alternatives and order the appropriate available treatment that imposed the least restraint on liberty. The court also rejected S.J.'s argument that SOCA does not provide procedural due process because the State elects to make only the most restrictive level of treatment available. The court found that SOCA's provision that the Board order the least restrictive treatment alternative did not mean that the State must make less restrictive alternatives available or pay for such alternatives and that such provision was not a denial of due process.

With regard to the least restrictive treatment alternative, the district court distinguished In re Interest of O.S., 277 Neb. 577, 763 N.W.2d 723 (2009), in which this court reversed the district court's affirmance of a commitment order because the State presented no evidence regarding alternative treatment options. In contrast to In re Interest of O.S., the court found that in the instant case, “the Board had an abundance of evidence before it regarding the various treatment alternatives offered in communities throughout Nebraska, as well as the programs available through DHHS.”

The court concluded that no substantive due process violation occurred, because the infringement on S.J.'s liberty was narrowly tailored to serve a compelling state interest in rehabilitating S.J. and protecting the community. The court found that continued inpatient treatment at NRC was the least restrictive treatment alternative available. The court noted that although the Board initially ordered outpatient treatment, additional risk factors came to light during therapy which indicated that inpatient treatment was necessary. Upon a de novo review of the record, the court found, based on evidence which included opinions...