MINNEAPOLIS PERSONAL INJURY ATTORNEY  
attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
   
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
   
 > Contact Us
   :: Contact Us
 

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

 Saint Paul Lawyer
 
 mdouglas@injurylawtwincities.com

 

In the Matter of the Civil Commitment of: Terrance John Giem: MENTAL ILLNESS - psychiatric commitment hearing timing & subject matter jurisdiction; petition discharged without prejudice

STATE OF MINNESOTA
IN SUPREME COURT
A06-1588
Court of Appeals Gildea, J.
In the Matter of the Civil Commitment Filed: December 13, 2007
of: Terrance John Giem Office of Appellate Courts
S Y L L A B U S
1. The district court did not lose subject matter jurisdiction when it failed to hold
a merits hearing on the countys petition to civilly commit appellant as a sexual
psychopathic personality and/or sexually dangerous person within the deadlines
prescribed by Minn. Stat. 253B.08, subd. 1 (2006).
2. Minnesota Statutes 253B.08, subd. 1, provides that a petition for commitment
shall be dismissed if a merits hearing is not held within 90 days from the date of filing the
petition, and shall be automatically discharged if a merits hearing is not held within 5
days after the patient demands a hearing. Although the patient waived his right to a
hearing within 90 days of the filing of the petition, he later demanded a hearing and did
not waive his right to a hearing within 5 days of his demand. The petition therefore
should have been discharged.
3. Discharge of the petition is without prejudice and does not operate to bar the
countys right to refile the petition for civil commitment.
2
Affirmed in part and reversed in part.
Heard, considered, and decided by the court en banc.
O P I N I O N
GILDEA, Justice.
This case involves the subject matter jurisdiction of the district court to consider
Ramsey Countys petition to commit appellant Terrance John Giem as a sexual
psychopathic personality (SPP) and/or a sexually dangerous person (SDP). Giem
contends that the district court lost subject matter jurisdiction over the petition when it
did not hold a hearing on the merits of the petition within the deadlines set forth in Minn.
Stat. 253B.08, subd. 1 (2006). The district court and the court of appeals held that
Giem waived the right to have the merits hearing held within the statutory deadlines.
Because we hold that the district court did not lose subject matter jurisdiction, but that the
courts determination that Giem waived his right to an immediate hearing was clearly
erroneous, we affirm in part and reverse in part.
Giem is a Level 3 sex offender. He was scheduled for release from the Minnesota
Correctional Facility at Moose Lake on October 27, 2005. But on October 19, Ramsey
County petitioned for his civil commitment as an SPP and/or SDP. The district court
conducted an initial hearing on the petition on October 26, 2005. At that hearing, Giems
attorney stated, although [Giem] does not agree with the petition, he would like to have
insight into where hes at right now and * * * is willing to go to the security hospital * *
* . [H]es not really in agreement with the petition, but has waived his preliminary
hearing. The district court asked Giem, [D]o you understand what [your attorney] just
3
said and is this what you have chosen to do today? To each question Giem responded,
Yes, Your Honor. The court then scheduled prehearing examinations for November
18, 2005, and asked, Do we want to try to set a [ ] date [for the merits hearing] at this
point? Giems attorney replied, Your Honor, wed like to wait with that until after the
exam, actually.1
The court held a hearing on February 23 for the purpose of scheduling the merits
hearing. At that time, Giem moved orally and in writing that the petition be dismissed
because 125 days had passed since its filing and the district court had not conducted a
merits hearing. Giems motion was based on section 253B.08, subdivision 1, which
provides that the hearing on a commitment petition * * * shall be held within 90 days
from the date of the filing of the petition.2 In the alternative, Giem demanded that his
1 Three examiners were appointed to evaluate Giem: Dr. Meyers (selected by
Giem), Dr. Zeller (selected by the district court), and Dr. Farnsworth (selected by the
county). Dr. Meyers conducted his initial examination on November 18, 2005, continued
his examination on December 1, and filed his report on April 27, 2006. Dr. Zeller
conducted his examination on December 30 and filed his report on April 4, 2006. Dr.
Farnsworth examined Giem on December 2 and completed his report on December 6,
2005.
2 The statute provides:
The hearing on the commitment petition * * * shall be held within 90 days
from the date of the filing of the petition. For good cause shown, the court
may extend the time of hearing up to an additional 30 days. The
proceeding shall be dismissed if the proposed patient has not had a hearing
on a commitment petition within the allowed time.
Minn. Stat. 253B.08, subd. 1.
4
hearing be held within 5 days of his request. This alternative request was based on the
other timing provision in the same subdivision:
The proposed patient * * * may demand in writing at any time that the
hearing be held immediately. Unless the hearing is held within five days of
the date of the demand * * * the petition shall be automatically discharged
if the patient is being held in a treatment facility pursuant to court order.
Minn. Stat. 253B.08, subd. 1. There is no dispute that Giem was being held in a
treatment facility pursuant to a court order. 3
At the hearing, Giems attorney argued that Giem wanted to have the merits
hearing as soon as possible because the examinations were complete. His attorney stated
that she was ready and available for such a hearing. The district court denied Giems
motion, stating that [a]ny delays if they can be characterized as such with regard to
bringing this case on for trial has [sic] been the result of the acquiescence of [Giem] and
I believe that [Giem] does have a right to a trial in a timely manner, but he has waived
his right by his acquiescence * * * . The court further noted that as a practical matter the
attorneys and judge could not be made available for the hearing within 5 to 15 days. On
March 6, the court issued a written order [b]y agreement of the Court and counsel
continuing the merits hearing to May 8-12, 2006.
3 The legislature also provided that the court may extend the time of hearing on the
demand for an additional ten days if good cause is shown. Minn. Stat. 253B.08,
subd. 1.
5
On March 22, Giem filed an appeal with the Minnesota Court of Appeals from the
order denying both his motion to dismiss and the demand for a merits hearing within 5
days. The court of appeals dismissed the appeal as taken from a nonappealable order and
said, The February 23 order is not appealable because it does not deny a motion to
dismiss on the ground of lack of subject-matter jurisdiction.
Giem subsequently filed a motion to dismiss the petition for lack of subject matter
jurisdiction. The district court heard this motion on May 1, but at that time Giems
attorney asked the court to continue the motion to dismiss and postpone the hearing in
order to implement a less restrictive alternative than commitment and to find Giem a
place to live and a treating psychologist. The court questioned Giem to ensure that he
understood his attorneys request and that he agreed to it. Giem confirmed his
understanding and agreement. The court then ordered a continuance until June 26.
At the June 26 court appearance, the district court considered Giems argument
that he was unable to formulate a less restrictive alternative because Ramsey County
Human Services refused to appoint a case manager. Giem asked the district court to
order Ramsey County to appoint a case manager to his case, continue the case to permit
the preparation of the alternative plan, or dismiss for lack of subject matter jurisdiction.
The court denied Giems motion to dismiss, but ruled that to the extent that Giems
motion could be construed as a demand for an immediate hearing pursuant to section
253B.08, subdivision 1, it was granted and the court ordered the merits hearing to
commence on July 5.
6
The merits hearing on the petition to civilly commit Giem as an SPP and/or SDP
was held July 5-7, 2006. The district court committed Giem as an SDP on August 18,
2006. Giem appealed to the court of appeals, arguing that the district court lacked subject
matter jurisdiction over the civil commitment petition because it failed to comply with
the deadlines in section 253B.08, subdivision 1. The court of appeals ruled that the
deadlines do not define or limit the district courts subject matter jurisdiction. In re
Civil Commitment of Giem, 727 N.W.2d 198, 203 (Minn. App. 2007). Rather, the court
held the deadlines to be statutory rights that were subject to waiver and that Giem had
waived them. Id. at 203-04, 205. We granted Giems petition for review.
I.
Giem argues that the district court lost subject matter jurisdiction to hear the
petition to commit him as an SPP and/or SDP when it failed to provide him a hearing on
the merits of the commitment petition pursuant to the deadlines set forth in section
253B.08, subdivision 1. Subject matter jurisdiction is a question of law that we review de
novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002).
We turn first to an examination of the statute that Giem contends divested the
district court of subject matter jurisdiction. There are two different timing provisions in
section 253B.08, subdivision 1, and both appear to apply to the countys petition. First,
the district court shall hold a hearing within 90 days from the date of filingor up to
an additional 30 days for good cause shownon a commitment petition for an SPP
and/or SDP. Minn. Stat. 253B.08, subd. 1. The statute further provides that [t]he
proceeding shall be dismissed if the proposed patient has not had a hearing on a
7
commitment petition within the allowed time. Id. Second, the proposed patient may
demand in writing at any time that the hearing be held immediately. Id. The hearing
must be held within 5 days of the date of the demandor 10 additional days for good
cause shownotherwise the petition shall be automatically discharged if the patient is
being held in a treatment facility pursuant to court order. Id. Neither deadline was
satisfied in this case.
We turn next to an examination of the consequence of the district courts failure to
meet the statutory deadlines. The parties do not dispute that the court had subject matter
jurisdiction over the petition when the county filed it on October 19, 2005. But because
the statutory deadlines were not met, Giem argues the court lost the authority to conduct
any further proceedings on the petition.4 See Robinette v. Price, 214 Minn. 521, 526, 8
N.W.2d 800, 804 (1943) (noting that subject matter jurisdiction refers to a courts
authority to hear and decide an issue in controversy).
Giem argues that the timing provisions in section 253B.08, subdivision 1 are
mandatory and not merely directory. He contends, in essence, that the legislative
requirements that the petition shall be dismissed in the first part of the statute and the
4 As noted by the court of appeals, Giems appeal from the district courts
commitment order challenges only the denial of his February 23 demand for immediate
trial or dismissal. Giem, 727 N.W.2d at 204. Minnesota Rule of Civil Appellate
Procedure 103.04 provides: On appeal from or review of an order the appellate courts
may review any order affecting the order from which the appeal is taken and on appeal
from a judgment may review any order involving the merits or affecting the judgment.
The February 23 order denying Giems motion to dismiss affects the commitment order
because it kept the proceedings on the petition active. Thus, the February 23 order is
properly before us.
8
phrase shall be automatically discharged in the second part of the statute mean that the
timing provisions are mandatory. In other words, because the legislature has provided for
consequences if the deadlines are not met, the deadlines are mandatory and therefore
necessarily jurisdictional.5
But there is a fundamental difference between finding that a deadline is mandatory
and concluding that it operates to take away the district courts authority to act. We
recently discussed the difference between deadlines as procedural tools and deadlines
operating as jurisdictional limits. Rubey v. Vannett, 714 N.W.2d 417 (Minn. 2006). As
we noted there, one aspect of the difference is that defects in subject matter jurisdiction
cannot be waived by the parties. Id. at 422. We attempted in Rubey to lend more clarity
to the analysis of this important distinction. In that case, we held that a provision in our
rules of civil procedure requiring that motions for a new trial be heard within 60 days did
not restrict the district courts subject matter jurisdiction. Id. Rather, we held that the
5 This case does not involve a situation where the legislature, in creating a
substantive right by statute, may, as an element of that substantive right, circumscribe the
adjudication of that right more strictly than in other cases. In re ORourke, 300 Minn.
158, 175 n.11, 220 N.W.2d 811, 821 n.11 (1974); see also Carlson v. Indep. Sch. Dist.
No. 623, 392 N.W.2d 216, 219, 221, 223-24 (Minn. 1986) (holding that the requirement
in the pre-1981 version of the Minnesota Human Rights Act that victims of
discrimination file a charge of discrimination with the Department of Human Rights
within 6 months of the claimed illegal act was jurisdictional and not subject to tolling).
The legislature in section 253B.08, subdivision 1, is not circumscribing the right of a
party to secure relief such as when it enacts a statute of limitations or imposes exhaustion
requirements. Rather, if Giems construction is adopted, the legislature is purporting to
restrict the authority of the district court to act on a matter that properly fell within its
subject matter jurisdiction in the first instance.
9
provision was a procedural tool. Id.6
Because of our lack of clarity in distinguishing procedural tools from jurisdictional
limits, Giems argument finds some support in our case law. For example, Giem
analogizes the consequential automatically discharged language in section 253B.08,
subdivision 1, to a similar phrase in Minn. Stat. 278.03 (2006), which this court
characterized as jurisdictional in Land O Lakes Dairy Co. v. Hintzen, 225 Minn. 538,
539, 31 N.W.2d 474, 476 (1948). In that case, we construed section 278.03, which
requires that a taxpayer protesting his property tax assessment pay half of the tax levied
against the property at issue before filing a petition, then half of the remainder the
following year. Id. at 537, 31 N.W.2d at 475. Failure to pay taxes when due shall
operate automatically to dismiss the petition and all proceedings thereunder unless such
payment is waived by an order of the court. Id., 31 N.W.2d at 475 (citing Minn. Stat.
278.03) (emphasis added). We held that the district courts jurisdiction terminated
automatically by operation of statute when the taxpayer failed to pay the second
installment. Id. at 538, 31 N.W.2d at 476.
6 Our analysis in Rubey was consistent with the United States Supreme Courts
warning against misuse of the term jurisdictional. The Court has noted that
[c]lassifying time prescriptions, even rigid ones, under the heading subject matter
jurisdiction can be confounding. * * * [T]he label jurisdictional [should be used] * * *
only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the
persons (personal jurisdiction) falling within a courts adjudicatory authority.
Scarborough v. Principi, 541 U.S. 401, 413-14 (2004) (quoting Kontrick v. Ryan, 540
U.S. 443, 454-55 (2004)). The Court distinguishes between non-jurisdictional procedural
rules designed for the orderly transaction of business and jurisdictional time limits set
forth by Congress in statute. Bowles v. Russell, __ U.S. __, 127 S. Ct. 2360, 2364-65
(2007); Eberhart v. United States, 546 U.S. 12, 16 (2005) (discussing distinction between
(Footnote continued on next page.)
10
But we clarified the reach of Land O Lakes in In re Thunderbird Motel Corp. v.
County of Hennepin, 289 Minn. 239, 241, 183 N.W.2d 569, 571 (1971). There, the
taxpayers petition was automatically dismissed by operation of the statute because the
taxpayer did not pay the second tax installment when due. Id. at 239, 183 N.W.2d at 570.
The taxpayer brought a motion to vacate the dismissal. We noted that [t]he failure to
pay the second installment when due was occasioned by a misunderstanding between the
taxpayer and its mortgagee as to who was supposed to pay the taxes. Id. at 240, 183
N.W.2d at 570. Moreover, the taxpayer cited the fact that immediately upon becoming
aware of the error, it paid the taxes with the requisite penalty. Id., 183 N.W.2d at 570.
We distinguished Land O Lakes because in that case the taxpayer neither paid the
taxes nor intended to do so. Thunderbird, 289 Minn. at 241, 183 N.W.2d at 571. This
distinction was significant because the statute permitted the payment requirement to be
waived upon timely application and did not specify whether the dismissal sanction was
with or without prejudice to obtaining further relief. Id., 183 N.W.2d at 571. We noted
that the legislature has the power to impose strict limitations on the right to review tax
assessments, but that once the proceedings are initiated and the court has jurisdiction,
in the absence of a clear intention to the contrary, * * * ordinary rules of civil procedure
apply unless clearly inconsistent with the statute. Id. at 241-42, 183 N.W.2d at 571; see
also Husby-Thompson Co. v. County of Freeborn, 435 N.W.2d 814, 815 (Minn. 1989)
(reversing the tax courts refusal to reinstate petition and noting that by providing for a
(Footnote continued from previous page.)
jurisdictional rules and claim-processing rules).
11
waiver in the statute, the legislature has recognized there may be situations where relief
from a dismissal is appropriate.). As clarified by Thunderbird and Husby-Thompson,
Land O Lakes is properly read as addressing a situation where the legislature has
created a substantive right (the ability to challenge decisions made by taxing authorities),
and imposed a limitation (the requirement that taxes be timely paid) as a condition on the
invocation of that right. Land O Lakes should not be read to address the situation
presented in this case, which involves the legislatures ability to take away the courts
power to act on a matter properly before the court.
We agree with Giem that the provisions of section 253B.08, subdivision 1 are
mandatory as we have defined that term in the context of statutory interpretation.7 See
Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 542 (Minn. 2007)
(noting that a statutory timing provision that included a consequence for noncompliance
was mandatory); Wenger v. Wenger, 200 Minn. 436, 440, 274 N.W. 517, 519 (1937)
(noting that when determining whether a statute is mandatory, this court looks to whether
the act provided for is merely incidental or subsidiary to some chief purpose of the law,
whether it is designed for protection of third persons, and whether the statute declares
consequences for a failure to comply). But we clarify that our cases that discuss the
mandatory/directory distinction in the context of questions of statutory interpretation do
7 A patients remedy for the district courts failure to follow the time procedures is a
writ of mandamus. See Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536,
541 (Minn. 2007) (When a statute requires a governmental body to perform some act, it
is reasonable to assume the governmental body will do so or it could be compelled to do
so by mandamus.).
12
not provide an answer to the question of whether those statutory provisions, even if
written in mandatory language, operate to divest the district court of subject matter
jurisdiction when such statutory provisions are not satisfied.8
Those cases do not answer the question here, because Giems construction of the
statuteas one divesting the district court of subject matter jurisdiction it originally
hadimplicates constitutional separation of powers principles. Our state constitution
provides a broad grant of subject matter jurisdiction to the district court, providing that
[t]he district court has original jurisdiction in all civil and criminal cases. Minn. Const.
art. VI, 3; see State ex rel. Koalska v. Swenson, 241 Minn. 278, 282, 62 N.W.2d 842,
844 (1954). The Minnesota district court thus is a constitutional court of original
jurisdiction. Over 100 years ago we recognized that the district court is the one court of
general jurisdiction and that when it has once tried a case according to law, it does not,
like certain courts of limited jurisdiction, lose its power to render judgment by mere delay
8 While not cited by the parties, Heller v. Wolner, 269 N.W.2d 31 (Minn. 1978),
could also be read as supporting Giems argument. In Heller, this court considered
whether the district court lost jurisdiction over proceedings to revoke a motorists drivers
license because the court failed to hold a hearing or grant a continuance within the
statutorily prescribed 30-day period. Id. at 32. We held that the court did not lose
jurisdiction because the statutory period is directory and not a limitation on the courts
jurisdiction. Id. And we commented that the statute did not specify any consequences
for failure to hold the hearing within the 30-day period, which reinforce[d] the directory
nature of the statute[ ] * * * . Id.; see also Wenger, 200 Minn. at 437-38, 274 N.W. at
518, 519 (statute held to be directory because it did not provide consequences for the
district courts failure to issue an order within the 5-month time limit after the matter was
submitted to the court). That the presence of consequences informs the determination of
whether a statute is mandatory or directory, however, does not address whether the
statute operates to divest the court of subject matter jurisdiction. Heller therefore does
not answer the question presented in this case.
13
beyond a specified time. Vogle v. Grace, 5 Minn. 294, 295 (Gil. 232, 233) (1861).
Giems construction of the timing provisions in section 253B.08, subdivision 1, as
mandatory and thereby operating to divest the court of jurisdiction conflicts with what we
said in Vogle.
In addition, such a construction would permit the legislature to interfere with the
power the constitution vests in the district court. Cf. State v. Harris, 667 N.W.2d 911,
918 (Minn. 2003) (Granting judicial officers the power to hear and try all civil and
criminal cases may improperly infringe on the district courts original jurisdiction. The
legislatures delegation of an area of the district courts original jurisdiction calls for this
courts close scrutiny. (internal quotation omitted)). We have long recognized that
where the constitution commits a matter to one branch of government, the constitution
prohibits the other branches from invading that sphere or interfering with the coordinate
branchs exercise of its authority. See Bloom v. Am. Exp. Co., 222 Minn. 249, 256, 23
N.W.2d 570, 575 (1946) (A constitutional grant of power to one of the three
departments of government * * * is a denial to the others. (internal quotation omitted));
State ex rel. Decker v. Montague, 195 Minn. 278, 288, 262 N.W. 684, 689 (1935) (The
constitutional separation of authority (Minn. Const. art. 3, 1) forbids * * * interference
with the exercise of the powers which that instrument places in the other branches of
government).
We have held that if we can construe a statute to avoid a constitutional
confrontation, we are to do so. Kline v. Berg Drywall, Inc., 685 N.W.2d 12, 23 (Minn.
2004). We recognized in Kline that statutes are presumed constitutional and that we are
14
required to place a construction on the statute that will find it so if at all possible. Id.
We construed the statute at issue in that case in a way that avoided a potential separation
of powers problem. Id. (It seems highly doubtful that the legislature intended the
limitation of review of an arbitrators decision to the WCCA, particularly when such a
limitation necessarily implicates due process and separation of powers concerns.). We
adopt a similar construction of section 253B.08, subdivision 1, and construe the statutory
deadlines as not operating to limit the subject matter jurisdiction of the district court.
Such a construction is consistent with our mandate to construe statutes, if possible,
to avoid constitutional infirmities. Such a construction is also warranted here because the
legislature gave no clear indication in section 253B.08, subdivision 1 that it intended to
divest the district court of subject matter jurisdiction if the hearing was not held in
compliance with the statutes deadlines. The legislature did not even mention jurisdiction
in section 253B.08. See Thunderbird, 289 Minn. at 241-42, 183 N.W.2d at 571 (noting
that once the proceedings are initiated and the court has jurisdiction, in the absence of a
clear intention to the contrary, * * * ordinary rules of civil procedure apply unless clearly
inconsistent with the statute. (emphasis added)); see also In the Interest of MFB, 860
P.2d 1140, 1149 (Wyo. 1993) (holding that failure to set an adjudicatory hearing within
60 days of the denial of allegations contained in a petition invoking juvenile court
jurisdiction did not result in a loss of that courts subject matter jurisdiction and holding
that it would require an unequivocal expression from the legislature for a violation of the
statutes language to result in a lack of subject matter jurisdiction.). In the absence of a
clear legislative statement that the deadlines operate to divest the court of jurisdiction,
15
which would require us to squarely confront and decide the separation of powers issue,
we hold that the deadlines in section 253B.08, subdivision 1, while written in mandatory
language, do not divest the district court of subject matter jurisdiction. The statute thus
requires a disposition but it does not deprive the court of power to act, which means that
the district court did not lose subject matter jurisdiction when the statutory deadlines
passed prior to the merits hearing being held.9
II.
We next consider whether the district court and the court of appeals correctly held
that Giem waived his right to have the merits hearing held within the deadlines set by
section 253B.08, subdivision 1. The county contends that Giem impliedly waived his
right to demand a hearing through acquiescence and conduct that delayed the petition
proceedings. Giem argues that his February 23 demand entitled him by law to an
immediate hearing, regardless of conduct prior to that demand.
A.
In addressing the waiver question, we must first determine whether waiver
9 Other states have recognized that once the district court obtains subject matter
jurisdiction, a later failure to follow statutory requirements does not divest the court of
subject matter jurisdiction. Such a failure to follow the statute would amount to an
erroneous decision not affecting jurisdiction. People in Interest of Clinton, 762 P.2d
1381, 1387 (Colo. 1988) (citing Prinster v. Dist. Court, 325 P.2d 938, 942 (Colo. 1958)
(holding that where personal and subject matter jurisdictional requirements are satisfied,
the trial court ha[s] power to make an erroneous order, as well as a correct one.)
(citation omitted)); see also In re Matthews, 550 S.E.2d 311, 645 (S.C. 2001) (holding
that the States failure to comply with a mandatory 60-day time period for a civil
commitment trial did not deprive the court of subject matter jurisdiction to hear the case).
16
principles are applicable in the context of section 253B.08, subdivision 1. The district
court did not clearly articulate its basis for concluding that the deadlines in the statute
could be waived. The court of appeals has held that the deadlines can be waived by
conduct of the patient. See In re May, 477 N.W.2d 913, 915 (Minn. App. 1991) (finding
that appellants failure to attend commitment hearings, which were scheduled within the
deadline, resulted in a waiver because [i]t would be an unreasonable result to permit a
proposed patient to avoid commitment simply by not appearing in court.); see also In re
Irwin, 529 N.W.2d 366, 371 (Minn. App. 1995) (noting that [a] patient may waive [the]
requirements of section 253B.08), rev. denied (Minn. May 16, 1995); In re Buckhalton,
503 N.W.2d 148, 151 (Minn. App. 1993) (finding waiver of the section 253B.08,
subdivision 1 deadlines), affd 518 N.W.2d 531 (Minn. 1994).
The county argues that the deadlines prescribed in section 253B.08, subdivision 1
are waivable. Those deadlines are similar to the right to a speedy trial, which can be
waived. In a criminal case, the right to a speedy trial is intended to avoid oppression
and prevent delay by imposing upon the courts an obligation to proceed with reasonable
dispatch. State v. Dehler, 257 Minn. 549, 556, 102 N.W.2d 696, 702 (1960). It is a
personal, constitutional right that can be waived. Id. at 557, 102 N.W.2d at 703 (citing
State v. McTague, 173 Minn. 153, 154, 216 N.W. 787, 788 (1927)). Similarly, the
deadlines provided in section 253B.08, subdivision 1 seek to protect liberty interests by
preventing delay. See Vitek v. Jones, 445 U.S. 480, 491-92 (1980) (We have recognized
that for the ordinary citizen, commitment to a mental hospital produces a massive
curtailment of liberty and in consequence requires due process protection. (internal
17
quotations omitted)). If constitutionally based rights to a speedy trial can be waived, a
patients conduct could likewise be construed as a waiver of the expedited statutory
schedule for civil commitment proceedings.
Our jurisprudence reflects that we examine the nature of the right at issue in
determining application of waiver principles. For example in State v. Humes, 581
N.W.2d 317 (Minn. 1998), we examined whether the district court had the authority to
resentence a defendant under Minn. R. Crim. P. 27.03, subd. 9, where it had failed to
include a conditional release term in the original sentence. The defendant argued that the
court had no such authority and that the statutory requirement for the imposition of a
conditional release term could be waived because the statute did not expressly prohibit
waiver of its requirements. Id. at 319. We reject[ed] the argument that the legislature
must append language prohibiting waiver to every mandatory statute to ensure that the
statute is given effect. Id. Rather than applying a blanket rule on waiver, we proceeded
to examine the nature of the right at issue. Finding that the statute at issue did not serve
to protect any right of the defendant, we concluded that the defendant could not rely on
waiver principles. Id. at 320. In this case, by contrast, the right to a speedy disposition of
the petition operates to protect important liberty interests of a confined patient, just as the
right to a speedy trial operates for confined defendants in criminal cases. Just as confined
defendants can waive the right to a speedy trial, we hold that confined patients can waive
the deadlines in section 253B.08, subdivision 1.10
10 Moreover, construing the statute to preclude application of waiver principles
(Footnote continued on next page.)
18
B.
Having concluded that waiver principles apply, we turn next to a review of the
district courts conclusion that Giem waived, by his conduct, both the right to have a
merits hearing within 90/120 days of the October 19, 2005, petition filing and the right to
have a hearing within 5/15 days of his February 23, 2006, demand. We review the
district courts decision that Giem waived his rights for clear error. See In re Welfare of
G.L.H., 614 N.W.2d 718, 723 (Minn. 2000) (applying clearly erroneous standard of
review to district courts finding of waiver).
We have defined waiver as the intentional relinquishment of a known right,
Carlson v. Doran, 252 Minn. 449, 456, 90 N.W.2d 323, 328 (1958), or an estoppel from
enforcing it. State v. Tupa, 194 Minn. 488, 495, 260 N.W. 875, 878 (1935). Waiver is
consensual in nature. Carlson, 252 Minn. at 456, 90 N.W.2d at 328. It arises from
voluntary choice, not mere negligence. Tupa, 194 Minn. at 495, 260 N.W. at 878. Intent
and knowledge are essential elements of a finding of waiver. Carlson, 252 Minn. at 456,
90 N.W.2d at 328.
Giem argues that the statutory deadlines cannot be waived constructively, and that
any waiver must be written or expressed on the record. But outside the context of
waivers of the right to counsel and to a trial by jury, which our rules require be made in
(Footnote continued from previous page.)
would implicate the same separation of powers principles discussed earlier. See State v.
Lemmer, 736 N.W.2d 650, 657 (Minn. 2007) (The judicial branch governs procedural
matters * * *.). To avoid these concerns, we construe the statute as permitting
application of waiver principles.
19
writing, we have found waivers to be inferred from conduct and acquiescence. See State
v. Martin, 723 N.W.2d 613, 620 n.7, 621 (Minn. 2006) (discussing cases where rights
have been found to be waived by defendants conduct); Engstrom v. Farmers & Bankers
Life Ins. Co., 230 Minn. 308, 312, 41 N.W.2d 422, 424 (1950) (noting that intention to
waive rights need not be proved by express declaration or agreement, but may be
inferred from acts and conduct). We adopt the same rule in this case and hold that a
confined patients waiver of the statutory deadlines in section 253B.08, subdivision 1 can
be inferred from the conduct of the patient.
The lower courts found that Giem waived both of the deadlines in the statute. The
record reflects that at the October 26, 2005, appearance Giem expressly waived his right
to a preliminary hearing and agreed that a date for the merits hearing should not be set
until after completion of the examinations.11 These facts support a finding that Giem
constructively waived his right to a hearing within the 90/120-day deadline. The district
court, county attorney, and examiners detrimentally relied on Giems October 26 waiver
by not scheduling a date for the merits hearing. Giem had knowledge and intent to
postpone the merits hearing until after his psychological evaluation in order to obtain
insight into where hes at right now. The February 23 finding that the delay in
scheduling the merits hearing arose from Giems acquiescence was therefore not clearly
11 Because the court initially did not set a date for the merits hearing, the courtappointed
examiners were not alerted about an immediate deadline to tender their reports.
See Minn. Stat. 253B.07, subd. 5 (2006) (explaining that examination reports are due
48 hours before a commitment hearing). Indeed, only the countys examiner had
submitted his report when Giem brought his motion to dismiss in February 2006.
20
erroneous. That finding is further supported by Giems requests for continuance on May
1 and June 26 in order to pursue the less restrictive alternativerequests which were
inconsistent with his motion to dismiss.
That Giem waived his right to have the hearing held within the 90/120-day
deadline, however, does not answer the question of whether he also waived his right to
demand an immediate merits hearing under the other provision in the statute. Section
253B.08, subdivision 1, as set forth above, contains two different rights of which Giem
could avail himself. See Minn. Stat. 645.17(2) (2006) (delineating the presumption that
the legislature intends the entire statute to be effective and certain).12 With respect to
the second right in the statute, the record does not support a finding that Giem waived his
right to demand an immediate hearing within the 5/15-day period. To the contrary, when
Giem made his demand on February 23, his attorney represented to the district court that
they were ready and available for an immediate hearing. The record also does not
support a finding that Giem had knowledge of or intent to waive the right to demand an
immediate hearing. We hold therefore that the district courts finding that Giem waived
his right to demand an immediate hearing was clearly erroneous.
III.
Our conclusion that the district courts finding that Giem waived his right to
demand an immediate hearing was clearly erroneous requires that we discuss the
12 The district court suggested that the legislature did not intend the second
provisionthe right to demand an immediate hearingto apply to patients whom the
(Footnote continued on next page.)
21
appropriate remedy. Giem had the right to demand in writing at any time that the
hearing be held immediately. Minn. Stat. 253B.08, subd. 1 (emphasis added).
Regardless of the scheduling impracticalities for the court, county attorney, and
examiners, the district court was required to hold the hearing within 5 days (or within an
additional 10 days if good cause were shown) of Giems February 23 demand. Because
the district court failed to conduct the hearing within 5 days of the demand and because
the record does not support a finding that Giem waived this right, the petition should have
been discharged. Minn. Stat. 253B.08, subd. 1. Therefore, we hold that the order
for commitment issued in August 2006 must be vacated, and that Giem must be released
from confinement.
Giem argues that the discharge means that the county is precluded from filing a
petition involving any actions that were at issue in the petition the county filed on
October 19, 2005. We reject this argument and hold that the discharge is without
prejudice and does not operate to bar the county from filing the petition anew. We agree
with the court of appeals that the time constraints provided in subdivision 1 relate to the
core of the liberty protected by the Due Process Clause. Giem, 727 N.W.2d at 202
(quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)). Those concerns are addressed
through Giems release from commitment pending the countys decision to file another
petition.
(Footnote continued from previous page.)
government seeks to commit as an SPP and/or SDP. The legislature expressed no such
exception in the language of the statute, and we are without authority to create one.
22
The governments interest, however, must also be considered. We have
previously recognized that the government has a compelling interest in the protection of
members of the public from persons who have an uncontrollable impulse to sexually
assault. In re Blodgett, 510 N.W.2d 910, 914 (Minn. 1994). That interest is served by
allowing the county, if it chooses, to renew its petition, and to rely on any conduct that
Giem engaged in prior to the filing of its renewed petition. We recognize that this result
may lead to a hearing on the merits of the countys petition that is replicative of the
hearing the district court conducted in July 2006. But this is the result mandated by
application of the clear language the legislature used in section 253B.08, subdivision 1.
Affirmed in part and reversed in part.
 

 
 
 

  What day were you injured?

  / /


  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall
Other:


  How have your injuries affected

  your life?

 


  What kinds of medical care
  professionals have you seen?

 


  What has your treatment cost?

 

  Is Insurance Involved?
My insurance may cover
        this.

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement
        offer.

I accepted a settlement
        offer.

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report


 

 

          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
 
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.