In the Matter of the Civil Commitment of: Wayne Joseph Averett.

This opinion will be unpublished and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
A17-0312

In the Matter of the Civil Commitment of:
Wayne Joseph Averett.

Filed August 21, 2017
Affirmed
Peterson, Judge

Judicial Appeal Panel
File No. AP16-9015
Hennepin County File No. 27-PO-97-060036

Michael C. Hager, Minneapolis, Minnesota (for appellant Wayne Joseph Averett)

Michael O. Freeman, Hennepin County Attorney, John L. K irwin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County)

Lori Swanson, Attorney General, Brandon Boese, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
Appellant, who is civilly committed as mentally ill and dangerous (MID),
challenges the judicial appeal panel’s decision denying his petition for discharge from the
state security hospital or transfer to a less-secure facility and granting respondents’ motion
to dismiss the petition. We affirm.

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FACTS
During a psychotic episode in 1996, appellant Wayne Joseph Averett attempted to
set his mother’s boyfriend on fire and eventually set the boyfriend’s house on fire.
Appellant was charged with first -degree arson, but was found not guilty by reason of
mental illness. Appellant was civilly committed as MID to the Minnesota Security
Hospital (MSH) on August 11, 1997. Appellant was transferred to Forensic Transition
Services (FTS), a lower-security facility, in July 2006. He was provisionally discharged
to a community facility in February 2009, but returned to FTS two weeks later after he
stopped taking his medications and his symptoms returned. Several months later, after he
walked away from FTS, appellant was returned to MSH.
In October 2015, appellant filed a petition for full discharge from civil commitment
or a transfer to FTS. Following a hearing, the Special Review Board (SRB) issued findings
recommending that appellant’s petition be denied. Based on this recommendation, the
assistant commissioner of the Minnesota Department of Human Services (DHS) issued an
order denying the petition. Appellant petitioned for rehearing and reconsideration before
the Judicial Appeal Panel (the appeal panel). The appeal panel reviewed stipulated exhibits
submitted by the parties and heard testimony from the court-appointed examiner and from
appellant.
In a psychological/risk assessment report pres ented to the appeal panel, a court -
appointed examiner, Dr. James Gilbertson, diagnosed appellant with bipolar disorder with
manic features, in current and sustained remission, and specified personality disorder
(antisocial and paranoid traits). The bipolar disorder is “well-stabilized” with medication.

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According to Gilbertson, although the manic featu re of the bipolar disorder is in
remission, appellant’s underlying personality disorder is “intertwined” with that disorder.
Gilbertson testified that appellant’s “bipolar disorder is colored by an underlying
oppositional and antisocial personality structure with . . . some paranoid features, so he
takes offense easily.” Gilbertson stated that if the personality disorder is “activated by a
. . . combination of bipolar, untreated bipolar illness, [it] can make [appellant] at high risk
to aggress against somebody to teach them a lesson, to show that he won’t . . . truckle [to]
. . . any behavior toward him or what he perceives as behavior toward him.” Gilbertson
said that the overt manic symptoms of bipolar disorder were in remission but “[i]t’s the
underlying instabilities caused by his personality structure that he’s not managing well at
the current time.” Gilbertson concluded that appellant did not meet the standards for either
full discharge or transfer to a less-restrictive setting.
In a report for the SRB, clinical psychologist Raymond Knutson noted that when he
assessed appellant in November 2015, appellant was rated at a 4B security level; generally,
a patient is not considered for transfer to a less-restrictive setting until he has achieved a
security-level 5 for several months. In a supplementary report in September 2016, Knutson
wrote that appellant’s security level had been downgraded to 3A because of many instances
of rule violations.
Dr. Adam Milz, a forensic psychologist for the state, inter viewed appellant and
issued a report in December 2015. He found that appellant knew that he needed to take his
bipolar medication to remain symptom-free. Appellant told Milz about his discharge plans:
he intended to live with a Canadian woman with whom he had corresponded ; and he

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identified a brother, who lived in Chicago and was reportedly homeless, as a source of
personal support. Milz noted that although appellant was compliant with medication, “he
has demonstrated difficulties remaining compliant with other aspects of his treatment
program, has been resistant to staff redirection, and has engaged in intimidating and
potentially inappropriate behavior.” Milz felt that appellant had an elevated risk for violent
behavior. He also commented on appellant’s “repeated rule violations that have resulted
in a reduction in his privileges.” Milz concluded that appellant was not an appropriate
candidate for transfer to a less-restrictive setting or for discharge.
Appellant presented to the appeal panel two letters from patients or former patients
praising him for helping them during life-threatening situations. Appellant maintained that
he did well while in FTS in 2006 -2009 because it was less restrictive a nd he “flourished
. . . without all the restrictions.” He said that some of his earlier behavioral problems
resulted from medication side effects. Appellant d id not con sider himself to be
“aggressive” and, instead, described himself as “assertive.”
Appellant denied having a personality disorder, which he described as “criminal
thinking” or being “against authority on purpose,” or preying on others. Appellant denied
currently breaking rules; he said that reports made about him were based on past incidents.
Appellant described his desire to return to Chicago, but he had no concrete plans, including
any means to get medication and therapy. Appellant disagreed that it was important to
remain in his current placement until he earned his level-5 security rating. He thought that
being in FTS would enable him “to organize a plan for [his] discharge.”

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Appellant described his approved relapse-prevention plan, which provides him with
strategies and outlines his risk factors. Appellant felt his current placement in Bartlett Hall
was more restrictive than one in the main security hospital. He believed that he was
disciplined because he was not afraid to speak up if he felt staff violated its own rules. He
claimed to be “passionate” rather than “argumentative.”
On rebuttal, Dr. Gilbertson explained that appellant had both paranoid and antisocial
traits to his personality disorder. This causes appellant to be “activated emotionally” by
what he perceives as unfairness and to break rules, for which he “has good
rationalizations.” Gilbertson testified that a patient’s ability to follow rules in one program
is a good predictor of ability to do so in another situation, and he indicated that appellant
had not been able to do so.
At the close of appellant’s presentation of evidence, respondents DHS and Hennepin
County moved for dismissal of appellant’s petition for rehearing and reconsideration under
Minn. R. Civ. P. 41.02(b) . The appeal panel granted this motion and issued findings,
conclusions, and an order denying appellant’s request for a transfer or discharge and
dismissing appellant’s petition for rehearing and reconsideration.
D E C I S I O N
I.
Appellant requested a full discharge from commitment . Under Minn. Stat.
§ 253B.18, subd. 15 (2016), “[a] patient who is mentally ill and dangerous shall not be
discharged unless . . . the patient 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

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and supervision.” In considering a discharge request, “the special review board and
commissioner [of DHS] shall consider whether specific conditions exist to provide a
reasonable degree of protection to the public and to assist the patient in adjusting to the
community. If the desired conditions do not exist, the discharge shall not be granted.” Id.
The supreme court has clarified that a patient may be released only if the evidence shows
both that the patient does not need continued inpatient treatment for his illness and that he
is not a danger to the public. Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995).
Before the appeal panel, “[t]he petitioning party seeking discharge . . . bears the
burden of going forward with the eviden ce, which means presenting a prima facie case
with competent evidence to show that the person is entitled to the requested relief.” Minn.
Stat. § 253B.19, subd. 2(c) (2016). If the petitioning party meets the burden of production,
the party opposing discharge has the burden of proving by clear and convincing evidence
that the discharge should be denied. Id. In Coker v. Jesson, the supreme court held that
the appeal panel “may not weigh the evidence or make credibility determinations when
considering a motion to dismiss under Rule 41.02(b) made at the close” of petitioner’s case.
831 N.W.2d 483, 490-91 (Minn. 2013).1 “Instead, the Appeal Panel is required to view the
evidence produced [by petitioner] in a light most favorable to the committed person.” Id.
at 491. We review an appeal -panel decision granting a rule 41.02(b) motion de novo.
Larson v. Jesson, 847 N.W.2d 531, 534 (Minn. App. 2014).

1 “The proceeding in which a committed person produces evidence is commonly referred
to as a ‘first-phase hearing.’” Coker, 831 N.W.2d at 486.

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Appellant was required to produce evidence that demonstrates that he 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. See Minn. Stat. § 253B.18,
subd. 15. Even under a de novo standard of review that inc ludes viewing the evidence in
the light most favorable to appellant, he did not satisfy his burden of production because
he produced no competent evidence that he could make an acceptable adjustment to open
society or that he is no longer in need of inpati ent treatment and supervision. See Minn.
Stat. § 253B.18, subd. 15. Appellant offered his opinion that he would do better if he were
discharged. Countering this, Dr. Gilbertson opined that appellant “continue[d] to have
significant adjustment problems t hat will require him to remain under treatment, a
continued institutional placement and appropriate supervision upon transitioned placement
in the community.” Gilbertson also noted that appellant had no discharge plan and there
had been “no discussion of how [appellant] would address his mental illness or living needs
if released.” The record also contained exhibits documenting an extensive list of rule
infractions, and a risk assessment by Dr. Milz that appellant had a heightened risk of future
violence and needed relapse-prevention programming.
Citing Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780 (1992), appellant argues
that he must be discharged because his mental illness is resolved. In Foucha, the Supreme
Court reversed a lower court decision that the patient should remain institutionalized even
though he was in remission from his underlying mental illness , because his antisocial
personality, something that could not be treated, made him a possible danger to himself or
others. 504 U.S. at 74-75, 112 S. Ct. at 1782 -83. The Supreme Court concluded that to

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continue his commitment, the state needed to show that the patient was both mentally ill
and dangerous. Id. at 77, 112 S. Ct. at 1784.
There are s ignificant differences between Foucha and t his matter. Foucha was
institutionalized without any hearing when he was found not guilty of a crime by reason of
insanity. Id. Appellant was committed after a hearing. Foucha’s mental illness was most
likely “a drug induced psychosis,” which had resol ved, and his examiners described him
as “in ‘good shape’ mentally,” and as “not suffering from a mental disease or illness.” Id.
at 75, 79, 112 S. Ct. at 1782, 1785. Appellant has an underlying and continuing serious
mental illness that is in remission, but his examiners explained how the personality disorder
and the bipolar disease are “intertwined.” Finally, Foucha had not had “constitutionally
adequate procedures to establish the grounds for his confinement.” Id. at 79, 112 S. Ct. at
1785. Appellant had hearings before both the SRB and the appeal panel, as well as a
hearing at the time of his commitment.
Appellant did not meet his burden of presenting a prima facie case that he is entitled
to be discharged. The appeal panel did not err by denying appellant’s request for discharge
and granting respondents’ motion to dismiss appellant’s petition for rehearing and
reconsideration.
II.
Appellant also requested a transfer to FTS, a less -restrictive setting. A patient
committed as MID may request a transfer out of a secure treatment facility. Minn. Stat.
§ 253B.18, subd. 6 (2016). The SRB considers the following factors when determining
whether a transfer is appropriate: “(1) the person’s clinical progress and present treatment

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needs; (2) the need for security to accomplish continuing treatment; (3) the need for
continued institutionalization; (4) which facility can best meet the person ’s needs; and
(5) whether transfer can be accomplished with a reasonable degree of safety for the public.”
Id. A patient seeking a transfer “must establish by a preponderance of the evidence that
the transfer is appropriate.” Minn. Stat. § 253B.19, subd. 2(c).2
We review the appeal panel’s dismissal under rule 41.02(b) de novo, Larson, 847
N.W.2d at 534, and its finding of facts for clear error. Foster, 857 N.W.2d at 548. Findings
are not clearly erroneous if “the record as a whole sustains the findings.” Rydberg v.
Goodno, 689 N.W.2d 310, 313 (Minn. App. 2004).
In its conclusions, the appeal panel considered the five transfer factors. It found:
[Appellant] has been unable to demonstrate an ability to sustain
himself in his present program. Since the issuance of the SRB
Findings in January 2016, [appellant] has had numerous
instances of rule violations and arguments with staff. He has
continued to exhibit antisocial behavior by selling things to
other patients to make a profit, making derogatory statements
toward staff, and denying doing those things. When asked why
he continued to break rules, [appellant] discussed how the
“system is oppressive,” and that the rules are biased and “go
against [his] moral beliefs.” [Appellant’s] baseline risk for
future violence is considered elevated, and his
confrontation/challenging behavior deemed an early linkage to
his capability for aggression. [Appellant’s] present treatment
needs and need for continued institutionalization, in addition
to the assistance he appears to be deriving from his present
skills program, indicate that transfer is not appropriate at this
time.

2 Transfer requests are subject to a different standard because the commitment statute
places the burden of proof on the petitioning party; there is no conflict between rule
41.02(b) and this statute as there is with a discharge request. See Foster v. Jesson , 857
N.W.2d 545, 548 (Minn. App. 2014) (contrasting standards for discharge and transfer
requests).

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The appeal panel’s transfer findings are supported by the record, and its decision to
deny appellant’s request for transfer to FTS is supported by th ose findings. The appeal
panel did not err by denying appellant’s request for transfer and granting re spondents’
motion to dismiss appellant’s petition for rehearing and reconsideration.
Affirmed.