In the Matter of the Civil Commitment of: Kutiey W. Thuok.

This opinion will be unpublished and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
A17-0457

In the Matter of the Civil Commitment of:
Kutiey W. Thuok.

Filed August 28, 2017
Affirmed
Kirk, Judge

Steele County District Court
File No. 74-PR-15-1726

B. Steven Messick, J. Scott Braden, P.A., Faribault, Minnesota (for appellant)

Daniel A. McIntosh, Steele County Attorney, Christy M. Hormann, Sasha J. Zekoff,
Assistant County Attorneys, Owatonna, Minnesota (for respondent Minnesota Prairie
County Alliance)

Considered and decided by Kirk, Presiding Judge; Worke, Judge; and Smith, John,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges the district court’s order finding him mentally ill and
dangerous to the public and ordering his indeterminate commitment. Because any error in
addressing both issues at one hearing and in a joint order was harmless, we affirm.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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FACTS
On August 20, 2015, following a rule 20.01 order finding appellant Kutiey Thuok
not competent to proceed to trial, a petition for judicial commitment was filed to commit
him as mentally ill and dangerous to the public (MI&D). Appellant suffers from
schizophrenia and had been charged with multiple felonies. A prepetition screening report
was also filed recommending his commitment as MI&D to the Minnesota Security Hospital
(MSH) for an indeterminate period of time. The petition alleged that appellant was refusing
psychotropic medications, had the potential to behave in an aggressive fashion, particularly
during episodes of mental instability, had voices telling him to commit suicide, and had
thoughts of harming others.
On August 21, the district court ordered appellant’s confinement at MSH pending
the preliminary hearing on August 24. Following the preliminary hearing, the district court
issued an order finding that there was a risk of “imminent serious physical harm” to
appellant or others if appellant was not immediately confined. The district court ordered
that the commitment hearing required under Minn. Stat. § 253B.18, subd. 1(a) (2016), be
held within 30 days of the original petition, and it was scheduled for September 18.
On September 3, respondent Minnesota Prairie County Alliance on behalf of Steele
County requested a continuance of the commitment hearing because the examiner was
unavailable. The district court continued the hearing to September 23. The court-ordered
psychological examination was filed on September 21, and the examiner concluded that
appellant’s risk level for violence was high and that there appeared to be sufficient criteria
to support commitment for mental illness.

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Following the September 23 commitment hearing, the district court filed an order
for commitment. Appellant admitted he was mentally ill and agreed to his continued
placement at MSH. Appellant also agreed to defer the determination of whether he was
“dangerous.” The district court found that appellant was mentally ill and that he met the
statutory criteria for civil commitment. Appellant retained his right to have a full hearing
on the merits of the commitment petition at a review hearing , pursuant to Minn. Stat.
§ 253B.18, subd. 2(a) (2016). The court ordered MSH to file a report on appellant’s status
within 60 days, and that the review hearing be held within 14 days of receipt of the report.
MSH filed its treatment report on November 18, concluding that appellant was
mentally ill and that he presented “a substantial likelihood of engaging in acts capable of
inflicting serious physical harm on another.” The report recommended that appellant be
committed to MSH for an indeterminate period of time. A treatment report, filed on
December 16, also concluded that appellant satisfied th e requirements for continued
commitment as a mentally ill person. A review hearing was scheduled for December 23.
On December 22, appellant filed a consent to continue his scheduled review hearing
“pursuant to Minn. Stat. § 253B.18, [s]ubd. 2 [(a)],” for up to one year . This option is
available under subdivision 2(b)(2) (2016) for the subdivision 2(a) review hearing, but not
for the subdivision 1(a) hearing on the commitment petition. Appellant wished to have his
review hearing held after the conclusion o f his pending criminal matters so that his right
not to incriminate himself was protected, and he agreed to remain at MSH until that time.
Following a December 22 hearing, the district court issued an order finding that appellant
continued to meet the cri teria for commitment as mentally ill and that he consented in

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writing, and orally on the record, to continue his review hearing and to continue his
placement at MSH. The court ordered that the review hearing be continued up to one year,
but that it be held no later than September 23, 2016.
On February 10, 2016, MSH filed an updated report noting that appellant continued
to satisfy the requirements for commitment as mentally ill and that he posed “a substantial
likelihood of physical harm to self or others. ” Another review hearing was scheduled for
September 16, but on September 13, the district court ordered, by agreement of the parties,
that appellant’s review hearing be continued to October 12 to allow MSH to file an updated
report. The stipulated order for continuance contained similar conditions and agreements
as the previous review hearing continuance.
On September 30, appellant’s attorney requested another continuance, with
respondent’s consent, asking that the review hearing be held after appellant was sentenced
on his criminal matters. On October 4, MSH filed an updated report with the same
conclusions and recommendations. Following an October 12 hearing, the district court
issued another stipulated order continuing appellant’s review hearing to November 21.
The contested review hearing was finally held on November 21 and 22. At the
outset, the district court noted that the hearing was to determine whether appellant was
dangerous. Respondent clarified that the hearing was also to determine whether appellant
should be committed for an indeterminate period of time under Minn. Stat. § 253B.18,
subd. 3 (2016) . Appellant did not object to this characterization of the hearing. At the
close of the hearing, appellant req uested that he be committed as mentally ill, but not as
MI&D.

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In its final order, filed on January 23, 2017, the district court concluded that
appellant is MI&D. The court noted that the review hearing was held pursuant to Minn.
Stat. § 253B.18, subd. 2(a), “after initially continuing the hearing for one year by agreement
of all parties, . . . wherein the [c]ourt was to determine if [appellant] is mentally ill, as
admitted by [appellant], or [MI&D].” The court concluded that, as a result of his mental
illness, appellant “presents a clear danger to the safety of others as demonstrated by the
fact that [he] has engaged in overt acts causing or attempting to cause serious physical harm
to other persons.” The court found that “it is likely [appellant] will co ntinue to lose even
more control over his behavior due to the mental illness, and it is reasonable to anticipate
an increase in violent behavior.” The court noted that appellant’s risk of engaging in acts
of violence would increase if appellant is untreated.
The district court committed appellant to MSH for an indeterminate period of time.
The court acknowledged that appellant’s mental health and behaviors had improved since
his admission to MSH, but noted that his improvement did not lead the court to believe that
he would continue to take his medication s, remain sober, or cooperate with mental health
treatment if he were committed as mentally ill but not dangerous. The court concluded that
appellant needed treatment in a structured and consistent program with intense supervision,
oversight, and access to multidisciplinary support, and that appellant would not be
successful in a facility less restrictive than MSH.
On appeal a ppellant challenges the district court’s order committing him to MSH
for an indet erminate period of time because he believes the court erred by holding one

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hearing and issuing one order to address both whether he was MI&D and whether he should
be committed for an indeterminate period of time.
D E C I S I O N
First, this court generally declines to address issues not properly raised before the
district court. Beaulieu v. Minnesota Dep’t of Human Servs., 825 N.W.2d 716, 724 (Minn.
2013) (citing Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)); In re Ivey, 687 N.W.2d
666, 671 (Minn. App. 2004), review denied (Minn. Dec. 22, 2004). Here, appellant failed
to preserve this issue for appeal. At the outset of the November 2016 hearing , appellant
did not object to the characterization that the hearing was being held to address both
whether appellant was dangerous and whether he should be committed for an indeterminate
period of time. Appellant had the opportunity to question witnesses and present evidence
on both issues at the hearing. Although this issue was not preserved for appeal, we elect
to exercise our discretion to address appellant’s claim on the merits. See Minn. R. Civ.
App. P. 103.04 (allowing appellate courts to take any action or review any matter in the
interest of justice); In re Civil Commitment of Martin , 661 N.W.2d 632 , 640 n.3 (Minn.
App. 2003) (invoking this aspect of rule 103.04 to address a question in the interests of
justice), review denied (Minn. Aug. 5, 2003).
Minn. Stat. § 253B.18 (2016) sets forth the procedure for committing a person as
MI&D. Minn. Stat. § 2 53B.18, subd. 1(a), requires that, after a petition for commitment
alleging a person is MI&D is filed, the district court “shall hear the petition as provided in
sections 253B.07 and 253B.08.” Minn. Stat. § 253B.08, subd. 1(a), requires that the court
hold its hearing within 14 -44 days from the date the petition was filed. At the initial

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commitment hearing under subdivision 1(a), “[i]f the court finds by clear and convincing
evidence that the proposed patient is [MI&D], it shall commit the person to a sec ure
treatment facility . . . unless the patient establishes by clear and convincing evidence that a
less restrictive treatment program is available that is consistent with the patient’s treatment
needs and the requirements of public safety.” Minn. Stat. § 253B.18, subd. 1(a).
Minn. Stat. § 253B.18, subd. 2 (a), requires that a review hearing be held after the
initial commitment of a person as MI&D. T he secure treatment facility is required to file
a written treatment report within 60 days after commitment. Id. Then, “[t]he court shall
hold a [review] hearing . . . within the earlier of 14 days of the court’s receipt of the written
treatment report, or within 90 days of the date of initial commitment or admission, unless
otherwise agreed by the parties.” Id. The review hearing is required to “make a final
determination as to whether the person should remain committed as [MI&D]” for an
indeterminate period of time. Id. Under Minn. Stat. § 253B.18, subd. 2(b)(2), the review
hearing may be continued for u p to one year by agreement of the parties, which is what
occurred in this case. Regarding indeterminate commitment, the statute provides that it
shall be ordered if “at the final determination hearing held pursuant to subd[.] 2,” the court
finds that the patient continues to be MI&D. Id., subd. 3.
“In reviewing a commitment, we are limited to an examination of whether the
district court complied with the requirements of the commitment act.” In re Civil
Commitment of Janckila , 657 N.W.2d 899, 902 (Minn. App. 2003). Whether or not the
district court erred when it determined that appellant was MI&D and committed him for
an indeterminate period of time in the same order following a hearing on both issues is a

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question of law subject to de novo review. See In re Civil Commitment of Spicer , 853
N.W.2d 803, 807 (Minn. App. 2014) (citing In re Linehan, 518 N.W.2d 609, 613 (Minn.
1994)).
Appellant argues that the district court erred as a matter of law when it issued its
written order finding him MI&D and comm itting him for an indeterminate period of time
and in addressing both issues at one hearing. By doing so, appellant argues that the district
court failed to comply with the requirements of Minn. Stat. § 253B.18, subd. 2. Appellant
asserts that after the court determined that he was MI&D at the November 2016 hearing,
he was entitled to another review hearing under subd ivision 2 to determine whether he
continued to be MI&D before he could be committed for an indeterminate period of time.
Appellant relies on In re Welfare of Alexander, 410 N.W.2d 85 (Minn. App. 1987),
to support his argument for another hearing under subd ivision 2. After being found to be
MI&D at a preliminary hearing and committed, th e patient in Alexander agreed to be
committed as a mentally ill person, but not dangerous, without a contested review hearing.
Id. at 86. The district court in Alexander denied the county the opportunity to present
evidence of dangerousness and committed the patient as mentally ill. Id. Appellant asserts
that because this court found reversible error in Alexander, this court must also find
reversible error here.
Appellant also argues that he was prejudiced by the procedure followed by the
district court. Appellant claims that he was not able to present evi dence at the November
2016 hearing regarding his success in treatment and factors that would mitigate or direct

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the district court to find that he is no longer a danger to the public. Appellant asks this
court to reverse and remand for a final review hearing.
Respondent argues that the district court did not err because the November 2016
hearing met the requirements of Minn. Stat. § 253B.18, subds. 2 and 3, and appellant was
not denied a final determination hearing as he claims. Respondent contends that appellant
was afforded the opportunity to present evidence on his behalf and that the district court
considered both issues at the November 2016 hearing, as required under subdivision 2.
Respondent acknowledges that the procedure followed i n appellant’s case was
“unconventional,” but argues that through his waivers and by agreeing to this procedure,
appellant inherently agreed to combine the determination of his dangerousness with the
determination of whether he should be committed indetermi nately at the review hearing.
Respondent asks this court to uphold the district court’s order for indeterminate
commitment, arguing that any error in combining portions of the required hearings was
harmless and that appellant was not prejudiced.
Minn. R. Civ. P. 61 applies to commitment proceedings under chap ter 253B and
provides that “no error or defect in any ruling or order or in anything done or omitted by
the court or by any of the parties is ground for . . . vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such action appears to the court
inconsistent with substantial justice.” See Minn. R. Civ. P. App. A (noting that, absent
inconsistencies or conflicts with the procedures described in chap. 253B, the rules of civil
procedure apply to civil commitment proceedings). This court “must disregard any error

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or defect in [a] proceeding which does not affect the substantial rights of the parties.”
Minn. R. Civ. P. 61.
Here, this court need not determine whether the district court erred by deferring its
determination on the issue of dangerousness to the review hearing because, at least on this
record, any error was harmless. After admitting he was mentally ill at the commitment
hearing and being committed to a secur e treatment facility for over a year, appellant was
afforded a contested hearing as required under subdivision 2(a). At that hearing, the court
addressed both whether appellant remained dangerous as alleged in the petition and
whether he should be committed indeterminately. Unlike in Alexander, and contrary to his
claim, appellant was provided the opportunity to present evidence regarding whether he
was MI&D and regarding his success in treatment at his review hearing . Not only was
appellant’s relative s tability in treatment considered by the district court, the court noted
his progress and nonetheless determined that indeterminate commitment at a secure facility
was appropriate.
Because appellant was afforded the opportunity to fully litigate both the MI &D
determination and his need for indeterminate commitment, and because these issues were
considered by the district court with the benefit of multiple treatment reports over the
course of the preceding year, as well as the testimony of experts at the hear ing, this
appellant was not prejudiced by what he asserts was a procedural error. Even if the district
court did err, the error was harmless where this “unconventional” procedure was followed
at appellant’s request and to his benefit. This court declines to reverse for a technical error
because there is no indication that appellant has been prejudiced through the impairment

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of substantial rights essential to a fair hearing. See In re Gonzalez, 456 N.W.2d 724, 728
(Minn. App. 1990) (declining to reverse a commitment for a finding which, if erroneous,
was “harmless”); In re Alleged Mental Illness of Picataci , 367 N.W.2d 609, 613 (Minn.
App. 1985) (same).
Affirmed.