In the Matter of the Civil Commitment of: Leah Christina Graeber

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0259

In the Matter of the Civil Commitment of:
Leah Christina Graeber

Filed July 17, 2017
Affirmed
Johnson, Judge

Judicial Appeal Panel
File No. AP15-9137

David A. Jaehne, West St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Ali P. Afsharjavan, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

James C. Backstrom, Dakota County Attorney, Donald E. Bruce, Assi stant County
Attorney, Hastings, Minnesota (for respondent Dakota County)

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Leah Christina Graeber is civilly committed as a mentally ill and dangerous person.
She petitioned for a provisional discharge or a discharge. The judicial appeal panel granted
the commissioner of human services’ motion to dismiss her petition. We affirm.
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FACTS
In 2010, Graeber was involved in an automobile accident in which she drove at a
speed of more than 100 m.p.h., crossed a median, and crashed into an oncoming vehicle ,
killing an 11 -year-old boy and injur ing three others. The state charged Graeber with
criminal vehicular operation and fifth -degree controlled -substance c rime, but she was
found incompetent to stand trial. In March 2012, the Dakota County District Court granted
a petition to civilly commit Graeber as mentally ill and dangerous (MI&D) for an
indeterminate period of time. See generally In re Civil Commitment of Graeber, No. A12-
0710, 2012 WL 4052899 (Minn. App. Sept. 17, 2012).
In February 2014, Graeber petitioned for a provisional discharge or a discharge from
her civil commitment. The special review board conducted a hearing and issued an order
recommending that the petition be denied. The commissioner of human services adopted
the recommendation and denied the petition.
In June 2015, Graeber requested reconsideration by the judicial appeal panel, which
conducted a hearing in August 2016. With the assistance of counsel, Graeber called two
witnesses: Thomas Alberg, Ph.D, a licensed psychologist, and herself. After Graeber
rested her case, the commissioner of human services moved to dismiss Graeber’s petition,
and Dakota County joined in the motion . The judicial appeal panel took the matter under
advisement. In December 2016, the judicial appeal panel issued a six-page order in which
it granted the motion to dismiss. Graeber appeals.
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D E C I S I O N
Graeber argues that the judicial appeal panel erred by granting the motion to dismiss
her petition for a provisional discharge or a discharge.
A.
A person who is committed as MI&D may be provisionally discharged only if he or
she “is capable of making an acceptable adjustment to open society. ” Minn. Sta t.
§ 253B.18, subd. 7 (2016). That determination must be based on two factors:
(1) whether the patient’s course of hospitalization and present
mental status indicate there is no longer a need for treatment
and supervision in the patient ’s current treatment setting; and
(2) whether the conditions of the provisional discharge plan
will provide a reasonable degree of protection to the public and
will enable the patient to adjust successfully to the community.
Id. A person who is committed as MI&D may be fully discharged only if he or she “is
capable of making an acceptable adjustment to open society, is no longer dangerous to the
public, and is no longer in need of inpatient treatment and supervision.” Id., subd. 15.
A person who is committed as MI&D may petition the special review board for a
provisional discharge or a discharge. Id., subds. 4c, 5. “The special review board shall
hold a hearing on each petition ” and, thereafter, shall “mak[e] its recommendation to the
commissioner” of human services. Id., subd. 5(c). If the commissioner denies the petition,
the com mitted person “may petition the judicial appeal panel for a rehearing and
reconsideration of” that decision. Minn. Stat. § 253B.19, subd. 2(a) (2016). The judicial
appeal panel must hold a hearing. Id. At the hearing, the committed person “bears the
burden of going forward with the evidence, which means presenting a prima facie case
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with competent evidence to show that the person is entit led to the requested relief .” Id.,
subd. 2(c). “If the petitioning party has met this burden, the party opposing discharge or
provisional discharge bears the burden of proof by clear and convincing evidence that the
discharge or provisional discharge should be denied.” Id.
If the commissioner wishes to challenge a petitioner ’s prima facie case, the
commissioner may move to dismiss the petition pursuant to rule 41.02(b) of the Minnesota
Rules of Civil Procedure, which provides, in relevant part:
After th e plaintiff has completed the presentation of
evidence, the defendant, without waiving the right to offer
evidence in the event the motion is not granted, may move for
a dismissal on the ground that upon the facts and the law, the
plaintiff has shown no right to relief.

Minn. R. Civ. P. 41.02(b); see also Coker v. Jesson, 831 N.W.2d 483, 490-91 (Minn. 2013)
(holding that other provisions of rule 41.02(b) do not apply to proceedings before judicial
appeal panel because of conflict with section 253B.19, subdivision 2(d)). In considering
such a motion, the judicial appeal panel “may not weigh the evidence or make credibility
determinations.” Coker, 831 N.W.2d at 490. “Instead, the Appeal Panel is required to
view the evidence produced at the first -phase hearing in a light most favorable to the
committed person.” Id. at 491. This court applies a de novo standard of review to a judicial
appeal panel’s grant of a rule 41.02(b) motion to dismiss. Larson v. Jesson, 847 N.W.2d
531, 534 (Minn. App. 2014).
B.
In this case, t he judicial appeal panel determined that Graeber did not produce
evidence capable of establishing the first factor, that “there is no longer a need for treatment
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and supervision in the patient ’s current treatment setting .” See Minn. Stat. § 253B.18,
subd. 7(1). Specifically, the judicial appeal panel stated,
She continues to be psychotic and delusional and to believe she
is God. She has a history of medication noncompliance, which
causes her to decompensate psychiatrically, bu t feels she does
not need to take her medications and has said that if released,
she would discontinue taking them at the earliest opportunity.

The judicial appeal panel also determined that Graeber did not produce evidence capable
of establishing the second factor, that “the conditions of the provisional discharge plan will
provide a reasonable degree of protection to the public and will enable the patient to adjust
successfully to the community.” See Minn. Stat. § 253B.18, subd. 7(2). Specifically, t he
judicial appeal panel stated,
The Petitioner continues to have a psychotic disorder and to
pose a danger to the public. She has poor social judgment and
has been assessed to have a high likelihood of committing
future acts of violence. Moreover, besides stating that she does
not want to go to [a different treatment facility] and would go
to Chicago if discharged, no evidence was presented at the
Hearing . . . as to any specific facility or locale to which the
Petitioner should be provisionally discharged or discharged, so
as to provide any degree of protection for the public, or any
assurances that the Petitioner would be able to adjust
successfully or reintegrate into the community.

The decision of the judicial appeal panel is correct in light of Graeb er’s evidence.
Alberg’s written report states as follows: Graeber has a long history of mental illness,
having been diagnosed with schizoaffective disorder—bipolar type, cannabis dependence,
and alcohol abuse. She is delusional and believes that she is God. She presents as
psychotic, agitated, and disorganized in her thoughts. She has poor abstract reasoning and
social judgment. She wants to discontinue taking her medication and is highly likely to
6
commit future violent acts. She continues to need treatment in an in-patient setting. There
is not a reasonable discharge plan that would protect the public.
At the hearing, Alberg testified by reiterating the opinions in his written report. He
elaborated by testifying that, if Graeber were discharged, she might quit her medication
and return to using street drugs. He testified that a risk assessment indicates that Graeber
is likely to act out. He concluded by opining that Graeber should not be provisionally
discharged or discharged.
Graeber’s own testimony did not advance her cause. She testified that believes that
she is God . She testified that she believes that she is in a romantic relationship with a
particular celebrity. She testified that she does not like to take her prescribed medication
and that, if she were discharged, she would like to use alcohol, marijuana,
methamphetamine, and crack cocaine. In general, h er testimony suggests ongoing
delusions.
None of Graeber’s evidence is capable of proving that she “is entitled to the
requested relief.” See Minn. Stat. § 253B.19, subd. 2(c). Her evidence does not tend to
show that “there is no longer a need for treatment and supervision in the patient ’s current
treatment setting” or that “the conditions of the provisional discharge plan will provide a
reasonable degree of protection to the public and will enable the patient to adjust
successfully to the community. ” See Minn. Stat. § 253B.18, subd. 7. To the contrary,
Graeber’s evidence suggests that she continues to need treatment and superv ision in her
current setting , that she would present a risk to public safety if she were provisionally
7
discharged, and that she likely would not adjust to the community if she were provisionally
discharged.
Thus, Graeber did not satisfy her burden of produ ction at the hearing before the
judicial appeal panel . Because she did not introduce evidence capable of satisfying the
criteria for provisional discharge, she also cannot satisfy the more-stringent criteria for a
full discharge. See Minn. Stat. § 253B.18, subds. 7, 15 . Therefore, the judicial appeal
panel did not err by granting the motion to dismiss the petition.
Affirmed.