Matter of Hehn

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 20In the Matter of Darl John Hehn
Megan Kummer, State's Attorney Petitioner and Appellee
v.
Darl John Hehn, Respondent and Appellant
No. 20190353
Appeal from the District Court of Richland County, Southeast Judicial District,
the Honorable Daniel D. Narum, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Megan E. Kummer, State’s Attorney, Wahpeton, ND, for petitioner and
appellee; submitted on brief.
Jonathan L. Green, Wahpeton, ND, for respondent and appellant; submitted
on brief.
Matter of Hehn
No. 20190353
McEvers, Justice.
[¶1] Darl Hehn appeals from a district court order denying his petition for
discharge from civil commitment as a sexually dangerous individual. We
remanded to the district court for further findings and retained jurisdiction
under N.D.R.App.P. 35(a)(3). In re Hehn, 2020 ND 226, 949 N.W.2d 848. We
conclude the court did not err in holding the State proved Hehn remains a
sexually dangerous individual. We affirm the court’s order as supplemented by
its order entered on remand.
I
[¶2] Our prior decision in Hehn, 2020 ND 226, sets forth the relevant facts
and procedural history of this case, which we repeat here only as necessary to
resolve the remaining issues.
[¶3] In November 2018, Hehn petitioned the district court for review and
discharge from civil commitment under N.D.C.C. § 25-03.3-18. In September
2019, the court held a hearing on his petition, receiving testimony from the
State’s expert, Dr. Erik Fox; the independent examiner, Dr. Jessica Mugge;
and Hehn. Dr. Fox’s October 2018 annual evaluation report was also received
into evidence, in addition to transcripts of deposition testimony from other
witnesses. Both experts ultimately agreed that Hehn continues to be a sexually
dangerous individual. In October 2019, the court entered an order denying his
petition, finding clear and convincing evidence showed Hehn continues to be a
sexually dangerous individual.
[¶4] In Hehn, 2020 ND 226, ¶ 14, this Court retained jurisdiction under
N.D.R.App.P. 35(a)(3) and remanded to the district court with instructions that
the court make specific findings of fact on whether Hehn is likely to engage in
further acts of sexually predatory conduct and whether Hehn presently has
serious difficulty controlling his behavior. On remand the court entered an
order on November 24, 2020, and provided additional specific findings
supporting its decision that Hehn remains a sexually dangerous individual and
1
denying his petition for discharge. The parties were given additional time to
submit further briefs on appeal. None were received.
II
[¶5] Hehn argues that the district court erred in deciding the State met its
burden of proving that he remains a sexually dangerous individual and that
his continued commitment is unconstitutional. After reviewing the record on
appeal and the court’s order denying his petition, as supplemented by the
findings entered on November 24, 2020, we conclude the court made the
necessary findings and they are supported by the record. We summarily affirm
under N.D.R.App.P. 35.1(a)(2).
III
[¶6] Hehn argues that the experts’ use of the State Hospital behavior
acknowledgments as a basis, in whole or in part, for his continued civil
commitment as a sexually dangerous individual is unconstitutional. He
contends that the current write-up procedures in place at the State Hospital
deprive him of life and liberty in the absence of due process. Hehn argues he is
entitled to due process regarding any behavioral acknowledgments or write-
ups he receives at the State Hospital. At the discharge hearing, Hehn sought
to exclude the expert’s annual report from evidence as a remedy for the alleged
due process violation in the write-up procedures.
[¶7] We have generally said that “[d]ue process claims require a two-step
analysis; the plaintiff must show that the state deprived him of some life,
liberty, or property interest and that the state’s deprivation of that interest
was done without due process.” Cockfield v. City of Fargo, 2019 ND 77, ¶ 9, 924
N.W.2d 403 (citing Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902 (8th
Cir. 2000); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)).
“[P]rocedural due process requires fundamental fairness, which, at a
minimum, necessitates notice and a meaningful opportunity for a hearing
appropriate to the nature of the case.” Curtiss v. Curtiss, 2016 ND 197, ¶ 8,
886 N.W.2d 565 (quoting St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d
175); see also In re G.R.H., 2006 ND 56, ¶ 24, 711 N.W.2d 587. Due process is
2
flexible and considered on a case-by-case basis, and the totality of the
circumstances must be considered in all cases. State v. Nice, 2019 ND 73, ¶ 9.
924 N.W.2d 102.
[¶8] Regarding the civil commitment of sexually dangerous individuals,
N.D.C.C. ch. 25-03.3 “requires sexually dangerous individuals to be treated in
the least restrictive manner necessary to treat the individual and to protect
society.” G.R.H., 2006 ND 56, ¶ 24. We have specifically discussed the pre-
commitment and post-commitment procedures that satisfy due process:
Under N.D.C.C. ch. 25-03.3, a person alleged to be a sexually
dangerous individual is entitled to a panoply of pre-commitment
and post-commitment procedures that are sufficient to provide the
individual with due process. A person committed as a sexually
dangerous individual is entitled to certain post-commitment
procedures in N.D.C.C. §§ 25-03.3-17 and 25-03.3-18, including the
least restrictive treatment and an annual examination and report
to the committing court. At the time of the annual examination,
the committed individual has the right to have an expert examine
the individual, and, if the individual is indigent, the court shall
appoint a qualified expert to examine the committed individual
and report to the court. N.D.C.C. § 25-03.3-17(2). The court may
order further examination and investigation of the committed
individual and the court may set a further hearing at which the
committed individual is entitled to be present and to have the
benefit of the protections afforded at the original commitment
proceeding. N.D.C.C. § 25-03.3-17(4). See M.D., 1999 ND 160, ¶ 28,
598 N.W.2d 799. The executive director may petition a committing
court at any time for the discharge of the committed individual.
N.D.C.C. § 25-03.3-17(5). The executive director annually shall
provide the committed individual with written notice that the
individual has a right to petition the court for discharge. N.D.C.C.
§ 25-03.3-18(1). If a committed individual files a petition for
discharge and has not had a hearing under N.D.C.C. §§ 25-03.3-17
and 25-03.3-18 during the preceding year, the committed
individual has a right to a hearing on the petition for discharge, at
which the committed individual is entitled to be present and to
have the benefit of the protections afforded at the original
commitment proceeding. A committed individual has a right to
3
appeal from an order of commitment or any order denying a
petition for discharge. N.D.C.C. § 25-03.3-19.
G.R.H., at ¶ 25. Section 25-03.3-24, N.D.C.C., addresses post-commitment
community placement. See G.R.H., at ¶ 26. In G.R.H., at ¶ 27, this Court
specifically concluded that “the procedures in N.D.C.C. ch. 25-03.3, which
provide a person civilly committed as a sexually dangerous individual with pre-
commitment and post-commitment safeguards designed to protect the person’s
liberty interest as the person proceeds through the treatment process, satisfy
procedural due process.” (Emphasis added.)
[¶9] In this appeal, relying on Cockfield, 2019 ND 77, ¶ 17 (citing Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) and Riggins v. Bd. of Regents of Univ. of
Neb., 790 F.2d 707, 712 (8th Cir. 1986)), Hehn argues that he is entitled to due
process regarding any behavioral acknowledgments or write-ups he receives at
the State Hospital, comparable to the rights to due process and meaningful
opportunity to be heard for public employee in pre- and post-termination
proceedings. See also Loudermill, 470 U.S. at 542; Smutka v. City of
Hutchinson, 451 F.3d 522, 526 (8th Cir. 2006). He argues similar due process
is required in the State Hospital’s procedures because the write-ups serve some
basis for his continued civil commitment and confinement.
[¶10] Hehn asserts the “uncontroverted evidence” shows the State Hospital did
not provide him with notice and an opportunity to be heard on the write-ups
before depriving him of life, liberty, and property. He contends that for each
write-up at the State Hospital, he is entitled to counsel, to provide testimony,
to present his case, and to cross-examine witnesses against him. While he
concedes the Sixth Amendment does not apply to civil cases, he asserts the
legislature has provided similar protections in the civil commitment
proceedings. He argues that because the write-ups are used as a basis for his
continued civil commitment, due process also demands that a hearing be held
on each write-up immediately.
[¶11] The State responds, however, that Hehn’s own testimony at the
discharge hearing shows an internal “appeal process” already exists at the
State Hospital for a person who receives a negative behavioral
4
acknowledgment or write-up. The State contends the due process requirement
is met by the annual review hearing.
[¶12] Hehn essentially asserts that if due process and a meaningful
opportunity to be heard apply to certain employment termination proceedings,
these due process rights should also extend to him in the State Hospital’s
behavioral acknowledgment or write-up process itself. Hehn argues that this
Court should extend such protections to this context because his liberty
interest here carries more weight than the property interest in the employment
cases and because the write-ups are used to justify his continued civil
commitment. He therefore contends that the experts’ reliance on them was
unreasonable. We are not convinced.
[¶13] Courts have held that “[s]o long as civil commitment is programmed to
provide treatment and periodic review, due process is provided.” In re Moen,
837 N.W.2d 40, 48 (Minn. Ct. App. 2013) (quoting In re Blodgett, 510 N.W.2d
910, 916 (Minn. 1994)). Hehn asserts the State Hospital has not provided him
with notice and an opportunity to be heard on the write-ups “before it deprives
life, liberty, and property.” However, the initial deprivation of Hehn’s liberty
occurred with his initial civil commitment proceedings finding him to be a
sexually dangerous individual, and the subsequent annual discharge hearings
have provided the requisite due process for his continuing civil commitment.
This Court has specifically held that the pre-commitment and post-
commitment safeguards provided in N.D.C.C. ch. 25-03.3 protect the person’s
liberty interest as the person proceeds through the treatment process and
satisfy procedural due process requirements. G.R.H., 2006 ND 56, ¶ 27.
[¶14] Although Hehn argues that he is entitled to due process in the State
Hospital’s write-up procedures, we have held that N.D.C.C. § 25-03.3-13
“requires the executive director to make the decision regarding the appropriate
treatment facility or program for a sexually dangerous individual.” Whelan v.
A.O., 2011 ND 26, ¶ 7, 793 N.W.2d 471 (citing G.R.H., 2006 ND 56, ¶¶ 22, 27
(holding the plain language of N.D.C.C. § 25-03.3-13 authorizes the executive
director to decide the least restrictive available treatment program or facility
for a sexually dangerous individual and the statute does not violate due process
5
or double jeopardy); In re B.V., 2006 ND 22, ¶¶ 13, 17, 708 N.W.2d 877 (holding
N.D.C.C. § 25-03.3-13 does not allow the district court to determine treatment
options at an initial commitment hearing, but rather places that determination
with the Department of Human Services)); see also N.D.C.C. § 25-03.3-01(2)
(“‘Executive director’ means the executive director of the department of human
services or the executive director’s designee.”); N.D.C.C. § 25-03.3-01(12)
(“‘Treatment facility’ means any hospital, including the state hospital, or any
treatment facility, including the life skills and transition center, which can
provide directly, or by direct arrangement with other public or private
agencies, evaluation and treatment of sexually dangerous individuals.”). Hehn
has not provided this Court with any case, statute, or administrative rule or
regulation requiring the State Hospital to provide the due process he contends
he must receive in the write-up procedures, which are also presumably part of
his treatment.
[¶15] At the discharge hearing, Hehn sought to exclude Dr. Fox’s expert report
from evidence as a result of the alleged due process violation in the write-up
procedures. In admitting the annual report, the following colloquy occurred:
MS. KUMMER: At this time, petitioner offers Exhibit 2, the
Sexually Dangerous Individual Annual Report dated October 1st
of 2018 into evidence.
THE COURT: Any objection to Petitioner’s 2?
MR. GREEN: Yes, Your Honor. I object, and the basis for the
objection stems on the ground that at least a chunk, if not a
significant portion, of Dr. Fox’s report is based upon write-ups that
Darl received. The write-ups were received in violation of his due
process rights inasmuch as he has not had the opportunity to
confront and cross-examine the witnesses against him. He did not
have a right to counsel during those write-ups, and he had no
rights to appeal, which, of course, would defy him of his right to
counsel as well.
THE COURT: Comments on the objection, Ms. Kummer?
MS. KUMMER: Certainly.
Your Honor, I understand Mr. Green’s objection, but my
argument would be that this wouldn’t certainly preclude the Court
taking the report into evidence, but would perhaps be an argument
6
as to the weight that the Court would give the evaluation as we
move forward and the analysis of the various factors.
THE COURT: All right. I agree with the petitioner’s
understanding. I think the objection goes to weight rather than
admissibility.
You will have the opportunity to cross-examine on the
petition and the underlying data and reports and other
information that were used as a basis.
So, the objection is overruled.
Petitioner’s 2 is received.
(Petitioner’s Exhibit 2 received into evidence.)
[¶16] Hehn contends due process requires that he should have been provided
an attorney as part of the State Hospital’s write-up procedures. To the extent
the State Hospital provides an internal “appeals process” for write-ups, Hehn
has provided no authority that the Due Process Clause confers a right to
counsel at such a proceeding, and we decline to recognize such a right. See
Beaulieu v. Minn. Dep’t of Human Servs., 798 N.W.2d 542, 549 (Minn. Ct. App.
2011) (declining to hold the Due Process Clause of the Fourteenth Amendment
confers a right to appointment of counsel in a civil commitment proceeding
when the United States Supreme Court has not so held). While N.D.C.C. § 25-
03.3-09 provides respondents the right to legal counsel in commitment
proceedings of sexually dangerous individuals, we decline to extend that
statutory right to include the State Hospital’s internal write-up procedures.
[¶17] Hehn’s argument appears to suggest the district court should have
excluded Dr. Fox’s expert report based on a purported constitutional violation.
This Court has previously rejected extending an exclusionary rule outside of
the criminal context. See In re Ebertz, 333 N.W.2d 786, 788-89 (N.D. 1983)
(explaining that while commitment proceedings generally mirror criminal
proceedings, “suppression of evidence in criminal cases (exclusionary rule) . . .
and other similar ‘remedies,’ are employed for various given reasons and in
most instances inure to the benefit of the defendant[;] [h]owever, if the same
‘remedies’ were strictly applied to involuntary commitment cases they would
produce unwarranted negative results”); cf. Beylund v. Levi, 2017 ND 30, ¶ 23,
889 N.W.2d 907 (concluding exclusionary rule did not require exclusion of
blood test results in civil administrative license suspension proceedings).
7
[¶18] Hehn argues on appeal that since he was not afforded a hearing on each
write-up, the experts’ reliance on them was unreasonable. We have explained,
however, that expert witnesses in a commitment proceeding “may base their
opinions on any information reasonably relied upon by psychologists in
determining whether an individual is sexually dangerous.” In re Rush, 2009
ND 102, ¶ 14, 766 N.W.2d 720 (emphasis added); see also N.D.R.Ev. 703 (“An
expert may base an opinion on facts or data in the case that the expert has
been made aware of or personally observed. If experts in the particular field
would reasonably rely on those kinds of facts or data in forming an opinion on
the subject, they need not be admissible for the opinion to be admitted.”); In re
D.V.A., 2004 ND 57, ¶¶ 5, 9, 676 N.W.2d 776 (holding expert witness had not
unreasonably relied on evidence—including penitentiary records, medical
records, conversations with another psychologist, and interviews with the
respondent—to form the expert’s opinion and that weakness or nonexistence
of a basis for the expert’s opinion goes to the credibility, and not necessarily to
the admissibility of the opinion evidence). Moreover, our rules “envision
generous allowance” of expert testimony:
The rules governing admission of expert testimony envision
generous allowance of its use if the witness is shown to have some
degree of expertise in the field in which they are to testify, and if
the testimony assists the trier of fact to understand the evidence
or determine a fact in issue and is qualified as an expert, it will be
accepted. . . . [T]he district court’s assessment of witness credibility
is granted deference, and the district court’s discretion in
admitting expert testimony will not be reversed unless the district
court abuses its discretion by acting in an arbitrary, unreasonable,
or unconscionable manner, or when its decision is not the product
of a rational mental process leading to a reasoned determination.
In re Loy, 2015 ND 92, ¶ 17, 862 N.W.2d 500 (citations omitted).
[¶19] On this record, we conclude the experts’ reliance on the State Hospital’s
behavioral acknowledgments or write-ups was not unreasonable. The district
court properly determined that Hehn’s objection went to the report’s weight
rather than its admissibility, and the court allowed him “the opportunity to
cross-examine on the petition and the underlying data and reports and other
8
information that were used as a basis.” The court therefore did not abuse its
discretion in admitting the report.
[¶20] Because we have concluded that the pre- and post-commitment
procedural safeguards in N.D.C.C. ch. 25-03.3 satisfy due process and that
Hehn has not established an additional right to due process in the State
Hospital’s write-up procedures, we conclude the expert reliance on them was
not unreasonable and the district court did not abuse its discretion in allowing
the expert’s report. We therefore are not persuaded by Hehn’s constitutional
argument or his proposed remedy to exclude from evidence an expert report
that relies on the State Hospital’s behavioral acknowledgments or write-ups.
IV
[¶21] We have considered Hehn’s remaining arguments and conclude they are
unnecessary to our decision or without merit. The district court’s orders are
affirmed.
[¶22] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
9