In the Matter of the Civil Commitment of: Dana John Thompson.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1510

In the Matter of the Civil Commitment of:
Dana John Thompson.

Filed May 30, 2023
Affirmed
Segal, Chief Judge

Wabasha County District Court
File No. 79-PR-22-607

Dana John Thompson, Elgin, Minnesota (pro se appellant)

Matthew Stinson, Wabasha County Attorney, Jacob Barnes, Senior Assistant County
Attorney, Emily Adel, Assistant County Attorney, Wabasha, Minnesota (for respondent
Wabasha County Social Services)

Considered and decided by Wheelock, Presiding Judge; Segal , Chief Judge; and
Ross, Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant was civilly committed on the grounds that he is a mentally ill and
chemically dependent person under the Minnesota Commitment and Treatment Act, Minn.
Stat. §§ 253B.001-.24 (2022). Appellant argues that the order of civil commitment must
be reversed because (1) he was not advised by the district court that he had the right to an
independent examiner, (2) he was under the influence of medication at the time of the
evidentiary hearing, and (3) his court-appointed counsel was ineffective. We affirm.
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FACTS
Respondent Wabasha County Social Services petitioned, in August 2022, for the
civil commitment of appellant Dana John Thompson on the grounds of mental illness and
chemical dependency. The county filed the petition after Thompson was found not
competent to proceed in a criminal case. The state had charged Thompson in the criminal
case with assaulting detention deputies at the Wabasha County jail. The competency
evaluator in the criminal case diagnosed Thompson with an unspecified personality
disorder. The evaluator also noted that Thompson “consistently presented with symptoms
of psychosis and mania,” but that it was not clear whether this was due to a mental illness
or “ongoing methamphetamine use.”
Dr. Paul Reitman conducted the initial post -petition evaluation of Thompson,
concluding that Thompson met the criteria for civil commitment as a mentally ill and
chemically dependent person. His diagnoses of Thompson included schizoaffective
disorder bipolar type with manic and psychotic features, methamphetamine abuse disorder,
cannabis disorder, adult antisocial personality disorder, and attention deficit hyperactivity
disorder.
Thompson’s court-appointed counsel requested the appointment of Dr. Steven
Norton as the second independent examiner, which request was granted by the district
court. Dr. Norton opined in his report that Thompson met the diagnostic criteria for bipolar
disorder, cannabis and amphetamine dependence, and antisocial personality disorder.
Dr. Norton noted that Thompson was “likely too ill and disruptive to be safely managed in
a community setting,” that “[h]is repeated threats of aggression to multiple examiners,
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recent physical aggression leading to current criminal charges, and his insistence on
meeting with Gov. Walz to air his complaints [were] all quite concerning,” and that
Dr. Norton would be calling the Wabasha County Sheriff to alert the sheriff to those
concerns. Dr. Norton concluded that Thompson met “the criteria for civil commitment as
a mentally ill and chemically dependent individual as the least restrictive alternative to
prevent harm to others.”
At the commitment hearing, the county presented testimony by the competency
evaluator, along with Drs. Reitman and Norton. Thompson testified on his own behalf and
opposed his commitment.
The district court found that Thompson was “a danger to self or others and without
proper treatment will suffer significant psychiatric deterioration or debilitation,” and that
there were no reasonable alternatives to commitment. The district court determined that
Thompson therefore met the statutory criteria to be committed as a mentally ill and
chemically dependent person as defined in Minn. Stat. § 253B.02, subds. 2, 17a, and
ordered that Thompson be civilly committed.
DECISION
To be civilly committed as a mentally ill or chemically dependent person, the district
court must “[f]ind[] by clear and convincing evidence that the proposed patient is a person
who poses a risk of harm due to mental illness . . . or chemical dependency, and after
careful consideration of reasonable alternative dispositions . . . that there is no suitable
alternative to judicial commitment.” Minn. Stat. § 253B.09, subd. 1(a). Thompson argues
that the commitment order must be reversed because he (1) was not informed of his right
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to a second independent examiner, (2) was under the influence of medication during the
commitment hearing in violation of the provisions in the civil-commitment statute, and
(3) was denied the effective assistance of counsel.
Before addressing Thompson’s individual arguments, we note, generally, that none
of the issues asserted by him on appeal were raised before the district court. We could thus
decline review of his arguments. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)
(stating that appellate courts typically address only those questions previously presented to
and considered by the district court); In re Ivey, 687 N.W.2d 666, 671 (Minn. App. 2004)
(applying this aspect of Thiele in a commitment appeal), rev. denied (Minn. Dec. 22, 2004).
Nevertheless, in the interests of procedural justice, we address many of the issues on their
merits.
I. Contrary to his argument on appeal, Thompson was informed of and exercised
his right to a second examiner.

The civil-commitment statute provides that the district court “shall inform the
proposed patient of the right to an independent second examination” and that, “[a]t the
proposed patient’s request, the court shall appoint a second court examiner of the patient’s
choosing to be paid for by the county.” Minn. Stat. § 253B.07, subd. 3. Here, Thompson’s
counsel requested an independent second examination and designated Dr. Norton as the
requested examiner. The district court granted the request and Dr. Norton conducted the
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second independent examination, submitted a report, and testified at the civil-commitment
hearing. Thus, subdivision 3 was not violated.1
II. Regardless of whether Thompson was under the influence of medication, he
was able to participate in the commitment hearing and the district court did
not violate Minn. Stat. § 253B.08, subd. 5.

Thompson next argues that he was under the influence of medication at the
commitment hearing and that the district court therefore violated Minn. Stat. § 253B.08,
subd. 5(a). That subdivision provides that “[a]t the time of the hearing, the proposed
patient shall not be so under the influence of drugs, medication, or other treatment so as to
be hampered in participating in the proceedings.” Minn. Stat. 253B.08, subd. 5(a).
At the commitment hearing, however, the district court expressly asked Thompson
whether he was on medication:
THE COURT: Mr. Thompson, have you been taking any
medications since in custody or hospitalized?

THOMPSON: No, not that I’m aware of. No.

Thus, the district court inquired, and Thompson denied, that he was on medication at the
time of the hearing. Moreover, subdivision 5(a) does not state that the proposed patient

1 We note that, even though Thompson claims he was never allowed to exercise his rights
under subdivision 3, he also asserts that the interview with Dr. Norton was only five
minutes and that therefore a “proper examination was not completed.” But Thompson did
not object to the introduction of the second examiner’s report during his hearing. And the
record shows that it was Thompson who cut short the interview. In his report, Dr. Norton
stated that his interview with Thompson lasted about ten minutes and that “Mr. Thompson
was unwilling to listen to any provided information and eventually stated he would not
complete an evaluation.” Dr. Norton also commented that, during the interview,
Thompson “displayed a high level of mania, with rapid pressured speech and flight of idea,
[was] unable to stay on one topic . . . [and was] unable to answer questions.”
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must be free of all medication during the hearing—just that the treatment or medication
cannot hamper a patient’s participation in the proceedings. And here, the transcript shows
that Thompson responded coherently to the questions asked of him to the point that the
district court noted, at the close of Thompson’s testimony, that “the last ten minutes, is the
best I’ve heard you speak, behave, or present yourself.” We thus reject Thompson’s
argument on this issue.
III. Because he cannot show prejudice, Thompson’s ineffective -assistance-of-
counsel claim fails.

Thompson asserts that he was denied the effective assistance of counsel, claiming that
his attorney failed to advocate vigorously on his behalf in violation of Minn. Stat.
§ 253B.07, subd. 2c , which provides that appointed counsel “shall: (1) consult with the
person prior to any hearing; . . . and (4) be a vigorous advocate on behalf of the person. ”
The right to counsel in a civil-commitment proceeding is a statutory right. See Minn. Stat.
§ 253B.07, subd. 2c. When analyzing an ineffective-assistance-of- counsel claim arising
out of a civil-commitment proceeding, we apply the two-prong test articulated in Strickland
v. Washington, 466 U.S. 668 (1984), for assessing such claims in criminal cases. In re Civ.
Commitment of Johnson, 931 N.W.2d 649, 657 (Minn. App. 2019), rev. denied (Minn.
Sept. 17, 2019). We review ineffective-assistance-of-counsel claims de novo. Id.
To establish a claim that counsel provided ineffective assistance, both prongs of the
test laid out in Strickland must be satisfied. 466 U.S. at 687; see also Johnson, 931 N.W.2d
at 657 (stating that the two prongs of Strickland must be met in civil -commitment cases).
First, a defendant must prove that their counsel’s performance was deficient and that it “fell
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below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. Second, a
defendant must prove that they were prejudiced by their counsel’s deficient performance.
Id. at 694; Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). “If a claim fails to satisfy
one of the Strickland requirements, [appellate courts] need not consider the other
requirement.” State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017).
When analyzing an attorney’s performance under the first prong of Strickland ,
“Appellate courts apply a strong presumption that an attorney’s performance falls within
the wide range of reasonable professional assistance.” Johnson, 931 N.W.2d at 657
(quotation omitted). An attorney’s performance does not need to be perfect, it must only
be “reasonable[] under prevailing professional norms.” Strickland, 466 U.S. at 688; accord
State v. Bailey, 132 N.W.2d 720, 724-25 (Minn. 1965) (quoting United States ex rel. Weber
v. Ragen, 176 F.2d 579, 586 (7th Cir. 1949)).
If an attorney’s performance is determined to have been deficient, the represented
party must still establish prejudice under the second prong of the Strickland test—that, but
for counsel’s deficient performance, there is a reasonable probability that the outcome of
the proceeding would have been different. Johnson, 931 N.W.2d at 658; see also
Strickland, 466 U.S. at 694 (stating that a reasonable probability is “a probability sufficient
to undermine confidence in the outcome”). Prejudice is not presumed and reviewing courts
“must consider the totality of the evidence before the judge or jury” when determining if
the second prong is satisfied. Johnson, 931 N.W.2d at 658 (quotation omitted).

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A. Deficient Performance
Thompson asserts that his counsel’s performance was deficient because the attorney
failed to vigorously advocate on Thompson’s behalf as required by Minn. Stat. § 253B.07,
subd. 2c(4), because his counsel failed to (1) object to any evidence admitted by the county
or ask any questions of Dr. Norton, (2) call Thompson’s wife to testify on Thompson’s
behalf, or (3) communicate with him prior to the hearing.
As to Thompson’s first argument— that his counsel’s performance was deficient due
to a failure to object and ask questions—decisions concerning which questions to ask and
which objections to make are considered matters of trial strategy, and appellate courts
“generally ‘will not review attacks on counsel’s trial strategy.’” Johnson, 931 N.W.2d at
657 (quoting Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004)). “It is well-established
that we give an attorney’s trial-strategy decisions particular deference.” Mosley, 895
N.W.2d at 592 (quotation omitted). This includes decisions about what objections to make
during commitment hearings. See Johnson, 931 N.W.2d at 657. Furthermore, “[m]ere
improvident strategy, bad tactics, mistake, carelessness, or inexperience do not necessarily
amount to ineffective assistance of counsel unless taken as a whole the trial was a mockery
of justice.” Bailey, 132 N.W.2d at 724 (quotation omitted).
Here, we cannot evaluate Thompson’s claim concerning objections because he has
failed to identify which objections should have been made. And, while it is true that
Thompson’s attorney did not cross-examine Dr. Norton, the attorney did thoroughly
question the county’s other two witnesses—the competency evaluator and Dr. Reitman—
in addition to questioning Thompson.
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Thompson also argues that his counsel’s performance was deficient because counsel
should have called Thompson’s wife as a witness. Generally, an attorney’s decision to call
someone as a witness is a matter of trial strategy. See State v. Munger, 858 N.W.2d 814,
822 (Minn. App. 2015) (stating that trial strategy includes “what evidence to present and
what witnesses to call at trial”), rev. denied (Minn. Mar. 25, 2015). And “[a] strong
presumption exists in favor of finding that counsel’s representation was reasonable, and
particular deference is given to matters of trial strategy, including which witnesses to call
and what information to present to the jury.”
2 State v. Pearson, 775 N.W.2d 155, 165
(Minn. 2009).
Finally, Thompson argues that his counsel’s performance was deficient because his
counsel failed to consult with him prior to the commitment hearing outside of “a brief
communication via phone” during which Thompson told his counsel “he wishe[d] to

2 We note that Thompson also argues that the failure to call his wife violated a statutory
right to have her testify under Minn. Stat. § 253B.08, subd. 3. That subdivision states, in
relevant part:

All persons to whom notice has been given may attend
the hearing and, except for the proposed patient’s counsel, may
testify. The court shall notify them of their right to attend the
hearing and to testify. The court may exclude any person not
necessary for the conduct of the proceedings from the hearings
except any person requested to be present by the proposed
patient.

Minn. Stat. § 253B.08, subd. 3. The “persons to whom notice has been given” references
the provision in Minn. Stat. § 253B.08, subd. 2, which provides that notice is required to
be given to “[t]he proposed patient, patient’s counsel, the petitioner, the county attorney,
and any other persons as the court directs.” Thompson’s wife is not on the list of persons
required to be notified of the commitment hearing, and therefore, did not have a statutory
right to testify during his hearing.
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proceed Pro Se.” As set out above, Minn. Stat. § 253B.07, subd. 2c(1), provides that
counsel “shall . . . consult with the person prior to any hearing.” However, as discussed
below, even if counsel’s performance was deficient on this or any of the other grounds
Thompson has asserted, Thompson has not articulated prejudice under the second prong of
the Strickland test.
B. Prejudice

The second prong of the ineffective -assistance-of-counsel test requires a showing
that, but for counsel’s alleged deficient performance, there is a reasonable probability that
Thompson would not have been civilly committed. See Johnson, 931 N.W.2d at 658.
Thompson fails to make such a showing. First, Thompson does not identify how correcting
his counsel’s alleged deficiencies would have impacted the district court’s determination
that he is “a mentally ill and chemically dependent person as defined by Minn. Stat.
253B.02, Subd. 2 and 17a, and meets the statutory criteria for civil commitment.” Second,
given that all three experts, including the independent examiner that Thompson requested,
agreed that Thompson satisfied the criteria for civil commitment as a mentally ill and
chemically dependent person, the totality of the evidence leads us to conclude that there is
no reasonable probability that, but for any alleged deficiency in counsel’s performance, the
outcome would have been different. We therefore decline to reverse the commitment order
on this basis.

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IV. None of the other issues raised in Thompson’s brief warrant a reversal of the
commitment order.

Finally, Thompson makes many other broad and sweeping arguments regarding
certain aspects of the commitment proceeding that he asserts require reversal. He contends
that the district court erred by denying all his motions, that it muted him during hearings,
and that “most of the witness statements and evidence presented were bias[ed], incorrect,
hearsay and possess[ed] no merit.” Beyond broad assertions of error, Thompson does not
provide any citations to the record or legal authority to support his arguments. Generally,
appellate courts decline to consider questions that are inadequately briefed. State, Dep’t of
Labor & Indus. v. Wintz Parcel Drivers, I nc., 558 N.W.2d 480, 480 (Minn. 1997)
(declining to consider an inadequately briefed question); see In re Civ. Commitment of
Kropp, 895 N.W.2d 647, 653 (Minn. App. 2017) (applying Wintz in a commitment matter),
rev. denied (Minn. June 20, 2017). And we decline to depart from this general rule here.
Affirmed.