862 N.W.2d 500
N.D.2015Background
- Garrett Loy was previously convicted in 2004 and 2005 of gross sexual imposition and served custodial sentences with suspended portions; he completed sex-offender treatment programs while incarcerated.
- The State petitioned to civilly commit Loy as a "sexually dangerous individual." The district court appointed Dr. Gregory Volk as an independent evaluator for the indigent respondent; the State presented an evaluation by Dr. Lynne Sullivan.
- Loy’s indigent status was later amended after he retained private counsel; the court ordered Loy to pay $2,700 toward the independent evaluation, then later struck that payment requirement.
- Dr. Sullivan (whose license was on probation) diagnosed Loy with hypersexuality and hebephilia and concluded high risk of reoffense; Dr. Volk diagnosed hebephilia and personality disorders and assessed moderate-to-high risk but opined community release could be possible with supervision and treatment.
- The district court admitted both experts, excluded a proposed testimony from a currently committed patient about treatment conditions, and committed Loy to the custody of the Department of Human Services, finding clear and convincing evidence he remained sexually dangerous.
- Loy appealed, arguing (1) improper admission of expert testimony (Sullivan and Volk), (2) denial of his right to choose an independent evaluator at State expense, (3) exclusion of witness Ireland about treatment conditions, and (4) insufficient evidence to meet the clear-and-convincing standard.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Loy) | Held |
|---|---|---|---|
| Admissibility of Dr. Sullivan (license on probation) | Sullivan is a licensed psychologist qualified to opine; probation does not revoke licensure. | Sullivan’s probationary licensure disqualifies her as a qualified expert. | License probation does not nullify licensure; admissible; probation affects weight, not admissibility. |
| Right to choose independent evaluator at State expense | Statute allows court-appointed expert for indigent respondents; respondent may retain but not choose court-paid expert. | As indigent, Loy argued right to have State pay and to choose his independent evaluator. | Court correctly appointed an expert; statute does not permit indigent respondent to dictate choice; prior payment order was erroneous but harmless because it was later withdrawn and indigency persisted. |
| Admissibility of Dr. Volk (alleged bias from unpaid bill) | Volk was qualified; any alleged bias or ethics issues go to credibility/weight. | Volk’s testimony was biased because Loy allegedly owed him $2,700 and failed to pay. | Volk’s testimony admissible; district court considered the alleged conflict and deemed it non-pivotal to decision. |
| Exclusion of testimony from committed patient about treatment conditions | Treatment quality at a particular facility is not an element of commitment; relevance is lacking and placement is executive director’s discretion. | Ireland’s testimony would show inadequacy of treatment and bear on commitment/conditions. | Exclusion was proper: commitment hearing focuses on dangerousness, not post-commitment placement or specific facility treatment. |
| Sufficiency of evidence to civilly commit (clear and convincing) | Expert evaluations and Loy’s history satisfy statutory elements (predatory conduct; disorder; likely to reoffend; difficulty controlling behavior). | Experts’ methodologies/diagnoses flawed (Sullivan didn’t interview in person); Volk’s opinion favored community placement. | Affirmed: sufficient clear-and-convincing evidence; credibility and weight of experts were for the trial court. |
Key Cases Cited
- In re M.D., 598 N.W.2d 799 (N.D. 1999) (civil nature of commitment proceedings for sexually dangerous individuals)
- In re Hehn, 838 N.W.2d 469 (N.D. 2013) (standard of review and clear-and-convincing requirement for continued commitment)
- In re Wolff, 796 N.W.2d 644 (N.D. 2011) (deference to trial court credibility determinations for expert witnesses)
- In re G.L.D., 855 N.W.2d 99 (N.D. 2014) (statutory elements required to prove continued sexual dangerousness)
- In re B.V., 708 N.W.2d 877 (N.D. 2006) (indigent respondent may have court-appointed expert, but does not have right to choose the expert)
- In re O.H.W., 775 N.W.2d 73 (N.D. 2009) (ethical or professional issues affecting an expert go to weight, not admissibility)
- Matter of G.R.H., 711 N.W.2d 587 (N.D. 2006) (due process considerations and post-commitment procedures; placement and treatment discretion of executive director)