In Re Phillip Jay BLODGETT, Alleged Psychopathic Personality.
No. C9-92-844.
Supreme Court of Minnesota.
Jan. 14, 1994.
Richard M. Arney, Washington County Atty., Douglas G. Swenson, and Susan Steffen Tice, Asst. Washington County Attys., Stillwater, for Washington County.
Hubert H. Humphrey, III, Atty. Gen., Kathy Meade Hebert, and Cheryl W. Heilman, Sp. Asst. Attys. Gen., St. Paul, for the State.
Deborah Gilman, John E. Grzybek, and Richard K. Ellison, Minneapolis, amicus curiae for MCLU.
SIMONETT, Justice.
Petitioner Phillip Jay Blodgett challenges the constitutionality of the Minnesota Psychopathic Personality Commitment Act,
Blodgett, now 28, has a history of sexual misconduct and violence beginning when he was 16 years old. In January 1982, Blodgett was adjudicated a delinquent in Pierce County, Wisconsin, for having sexual contact with his brother. Seven months later, Blodgett was again found delinquent after being charged for misdemeanor battery of a social worker. In May of 1985, the Washington County District Court found Blodgett guilty of a misdemeanor charge of violating a domestic abuse restraining order.
On May 9, 1987, while enrolled in the pre-release program at Lino Lakes (under which an inmate leaves the prison during the day but must return at night), Blodgett sexually assaulted a woman in the parking lot of a supermarket while attempting to steal her car. Blodgett grabbed the woman, pushed her into the front seat, shoved his hand in her mouth, hit her on the side of the head, put his hand between her legs and squeezed and rubbed her genital area. When the woman resisted and screamed for help, Blodgett asked her, “Do you want to die?” Five weeks later, June 15, 1987, while on supervised release to a half-way house and enrolled in a treatment program in St. Paul, Blodgett raped a 16-year-old girl both vaginally and anally. As a result of these incidents, Blodgett pled guilty to two counts of criminal sexual conduct in the second degree and was returned to prison.
Shortly before Blodgett‘s scheduled release date in 1991, Dr. Richard Friberg evaluated him pursuant to the Department of Corrections’ new risk assessment and release procedures.1 By letter dated September 19, 1991, Dr. Friberg informed the Washington County Attornеy that, in his view, Blodgett met the criteria for commitment under the psychopathic personality statute.
The MSH staff filed a report with the court, diagnosing Blodgett as suffering from polysubstance abuse and an antisocial personality disorder, but opposing his commitment as a psychopathic personality. A final court hearing was commenced on January 6, 1992, at which time Blodgett moved to dismiss the proceedings on the grounds “that Minnesota Statute Section 526.09 is unconstitutional.” At the hearing, Dr. Jacobson, who had performed the second court-ordered examination, diagnosed Blodgett as having an antisocial disorder, a substance abuse disorder, and a psychopathic personality, and said that Blodgett met the criteria of
Finally, on April 2, 1992, the trial court issued its decision finding that Blodgett continued to meet the criteria for commitment as a psychopathic personality and that there was no reasonable, less restriсtive alternative to commitment. After further determining that the statute was constitutional, the trial court ordered Blodgett committed to the security hospital for an indeterminate period of time.
On appeal, the court of appeals ruled that the trial court‘s finding that Blodgett was a psychopathic personality was not clearly erroneous and that Blodgett‘s commitment as a psychopathic personality was not unconstitutional. In re Blodgett, 490 N.W.2d 638 (Minn.App.1992). Blodgett then petitioned this court for further review, raising, however, only the constitutional challenge. In other words, Blodgett does not challenge here the findings that he has an uncontrollable sexual impulse dangerous to others. We granted review.
Blodgett‘s claim of unconstitutionality has two parts: (1) that § 526.10 violates his right to substantive due process; and (2) that the statute violates equal protection under the Minnesota and United States Constitutions.2
I.
Minnesota, like other states, has wrestled long with the legitimate public concern over the danger posed by predatory sex offenders and the question of how to deal with that concern.3 In 1939, the Minnesota
the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any such conditions, as to render such person irresponsible for personal conduct with respect to sexual matters and thereby dangerous to other persons.
Soon after its enactment, the psychopathic personality statute was challenged on the grounds that it was unconstitutionally vague. State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939), aff‘d, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940). In responding to the vagueness challenge, this court in Pearson recognized that “[i]t would not be reasonable to apply the provisions of the statute to every person guilty of sexual misconduct nor even to persons having strong sexual propensities. Such a definition would *** make the act impracticable of enforcement, and perhaps, unconstitutional in its application.” Consequently, the court emplоyed principles of statutory interpretation to narrow the reach of the statute to only those persons who, by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.
205 Minn. at 555, 287 N.W. at 302. Our court determined that, with these additional criteria, the act was not so indefinite or uncertain as to make it void for vagueness under the Fourteenth Amendment of the United States Constitution. The case was then appealed to the United States Supreme Court.
In a unanimous opinion authored by Chief Justice Charles Evans Hughes, the United States Supreme Court affirmed, holding the statute, as construed, was not so vague and indefinite as to be invalid. Minnesota ex rel. Pearson v. Probate Court of Ramsey County, Minn., 309 U.S. 270, 274, 60 S.Ct. 523, 526, 84 L.Ed. 744 (1940), aff‘g 205 Minn. 545, 287 N.W. 297 (1939). In the Court‘s view, “[t]hese underlying conditions, calling for evidence of past conduct pointing to probable consequences are as susceptible of proof as many of the criteria constantly applied in prosecutions for crime.” Id. The Court also rejected Pearson‘s claim that the statute violated the Equal Protection Clause of the Fourteenth Amendment. Using a rational basis test, the Court stated that “the legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.” Id. 309 U.S. at 275, 60 S.Ct. at 526. Finally, the Court found Pearson‘s procedural due process objections premature, but assumed “that the Minnesota courts will protect appellant in every constitutional right he possesses.” Id. at 277, 60 S.Ct. at 527.
In this case, Blodgett argues that Pearson should not be controlling because in recent years the United States Supreme Court has decided a number of cases, especially Foucha v. Louisiana, U.S., 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), which have restricted a state‘s power to confine individuals in a noncriminal setting.5 To live one‘s life free of physical restraint by the state is a fundamental right; curtailment of a person‘s liberty is entitled to substantive due process protection. See, e.g., Foucha, U.S. at, 112 S.Ct. at 1785; Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 3048, 77 L.Ed.2d 694 (1983). The state must show a legitimate and compelling interest to justify any deprivation of a person‘s physical freedom. E.g., United States v. Salerno, 481 U.S. 739, 748, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987).
Here the compelling government interest is the protection of members of the public from persons who have an uncontrollable impulse to sexually assault. In this case it has been clearly and convincingly established that Blodgett is dangerous, and that there is a substantial likelihood that he will sexually assault again, as he has in the past. Blodgett contends, however, that having served his allotted time in prison, he is entitled to his freedom.
The heart of Blodgett‘s argument is that although he may be socially maladjusted, he is not in any way mentally ill. And if he is not ill, he may not be confined by the state, unless and until convicted of another crime. Blodgett points to Foucha, which identified three categories of confinement in which a state, under its police power, may constitutionally deprive an individual of his or her liberty: (a) imprisonment of convicted criminals for purpose of deterrence and retribution; (b) confinement for persons mentally ill and dangerous; and (c) in “certain narrow circumstances, persons who pose a danger to others or to the community may be subject to limited confinement,” such as pretrial detention of dangerous criminal defendants. Id. U.S. at , 112 S.Ct. at 1785-86. Blodgett says he does not fit within any of these three categories.
Blodgett‘s argument, really, is that Foucha has overruled Pearson, even though the United States Supreme Court has not said so. We believe, however, that Pearson may be considered either a sub-set of Foucha‘s second category (mentally ill and dangerous), or an additional category.6
The argument against the constitutionality of civil commitment for a psychopathic personality is that the condition is not a mental illness, at least not one medically recognized, or at least not yet. But while the term “psychopathic personality” is considered outmoded today, the reality it describes is not; this reality, even if it is not currently classified as a mental illness, does not appear to be a mere social maladjustment.
Mental illness is simply that, an illness, and should be treated no differently than other illnesses and with due respect for personal liberties. When, however, a person is both mentally ill “and dangerous to the public,” our legislature has provided for commitment to the state security hospital.
The psychopathic personality statute identifies a volitional dysfunction which grossly impairs judgment and behavior with respect to the sex drive. Compare
In applying the Pearson test, the court considers the nature and frequency of the sexual assaults, the degree of violence involved, the relationship (or lack thereof) between the offender and the victims, the offender‘s attitude and mood, the offender‘s medical and family history, the results of psychological and psychiatric testing and evaluation, and such other factors that bear on the predatory sex impulse and the lack of power to control it. Proof of the requisite condition must be by clear and convincing evidence.
As the dissent points out, there apparently have been instances of persons committed as psychopathic personalities who do not fit the Pearson definition. The fact that the statute has been misapplied on occasion is not a valid criticism of the statute itself. The remedy for misapplication is not to declare the statute unconstitutional but to appeal erroneous decisions and get them reversed.9 More pertinent to the facial challenge to the statute are the cases where the statute has been properly applied.10
The problem is not what medical label best fits the statutory criteria, but whether these criteria may, constitutionally, warrant civil commitment. Fifty-three years ago the answer was yes, but it is now suggested that the passage of years has outmoded that decision. Yet the “sexual predator“—today‘s term for yesterday‘s “psychopathic personality“—seems, if anything, on the increase,
It is next argued that a psychopathic personality condition is untreatable, and, therefore, confinement is equivalent to life-long preventive detention. But it is not clear that treatment for the psychopathic personality never works.12 It also seems somewhat incongruous that a sexual offender should be able to prove he is untreatable by refusing treatment. Cf. Matter of Wolf, 486 N.W.2d 421, 424 (Minn.App.1992) (A confirmed alcoholic refusing all treatment may be involuntarily committed; “[r]espondent may never agree to be treated, but *** the state has the power to keep trying.“).
But even when treatment is problematic, and it often is, the state‘s interest in the safety of others is no less legitimate and compelling. So long as civil commitment is programmed to provide treatment and periodic review, due process is provided. Minnesota‘s commitment system provides for periodic rеview and reevaluation of the need for continued confinement. A person committed as a psychopathic personality may petition the Commissioner of Human Services at any time for a transfer to an open hospital or for a provisional discharge to a community or other residential treatment facility, or for a temporary pass. These relaxations of security hospital confinement provide an opportunity (and an incentive) for the committed person to demonstrate that he has mastered his sexual impulses and is ready to take his place in society. The patient can also petition for a full discharge.
We do not read Foucha to prohibit Minnesota‘s commitment program for psychopathic personalities. In Foucha the confinement was for insanity and, when the insanity was shown to be in remission, the United States Supreme Court said Foucha had to be released.13 Here, if there is a remission of Blodgett‘s sexual disorder, if his deviant sexual assaultive conduct is brought under control, he, too, is entitled to be released.14 We conclude, therefore, that the psychopathic personality statute does not violate substantive due process.
II.
Nor do we think the psychopathic personality statute violates equal protection
Blodgett‘s equal protection argument is obscure, but he apparently claims it is a denial of equal protection to deny sexual predators their liberty when others who may be dangerous but not recognized medically as mentally ill retain their personal freedom. This, however, is simply a variation of Blodgett‘s substantive due process argument, and the argument ignores the fact that the sexual predator poses a danger that is unlike any other.15 Amicus argues that it is unequal treatment to commit the psychopathic personality but not other criminal recidivist types, such as potential murderers and arsonists. But again, Pearson delineates genuine and substantial distinctions which definе a class that victimizes women and children in a particular manner. See Bailey v. Gardebring, 940 F.2d 1150, 1153 (8th Cir.1991) (also rejecting the equal protection claim).
III.
In this case the trial judge‘s findings of fact follow the statutory language of
We think, however, the legislature might well consider amending the statute to incorporate the Pearson construction.
Although this is not a proceeding where a committed person is seeking a discharge from commitment, we believe, in such a case, that the burden of proof should be on the state to show by clear and convincing evidence that commitment should continue. In such a proceeding the committed persons should have legal representation, just as at an initial commitment proceeding.
Most sexual offenders will be released upon completion of their prison terms. It is only the predator that is subject to
Or to put it another way: Is it better for a person with an uncontrollable sex drive to be given an enhanced prison sentence or to be committed civilly? The State of Washington, with a somewhat different program, has opted for the second alternative. See In re Young, 122 Wash.2d 1, 857 P.2d 989 (1993) (upholding constitutionality of sexually violent predator commitments under state‘s Community Protection Act). For the legislature which must provide the necessary prison cells or hospital beds, there are no easy answers. Nor are there easy answers for society which, ultimately, must decide to what extent criminal blame is to be assigned to people who are what they are.
In the present imperfect state of scientific knowledge, where there are no definitive answers, it would seem a state legislature should be allowed, constitutionally, to choose either or both alternatives for dealing with the sexual predator. At the very least, we should follow Pearson until the United States Supreme Court says otherwise.
Affirmed.
WAHL, J., dissents and files opinion, in which KEITH, C.J., and TOMLJANOVICH, J., join.
WAHL, Justice (dissenting).
I respectfully dissent.
The Minnesota Psychopathic Personality Statutes,
Notes
Since the legislature, in response to the report of the Governor‘s Committee on the Care of Insane Criminals and Sex Crimes,2 passed the first Psychopathic Personality Statute in 1939, the definition of the term “psychopathic personality” has remained essentially unchanged:
the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any such conditions, as to render such person irresponsible for personal conduct with respect to sexual matters and thereby dangerous to other persons.
those persons who, by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.
State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939) aff‘d, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940). The United States Supreme Court affirmed the statute as construed. Neither the Minnesota Supreme Court nor the United States Supreme Court addressed issues of substantive due process.
After Pearson had affirmed the constitutionality of the Minnesota Psychopathic Personality Statute, a number of other states passed similar statutes. Since 1959, however, half of the states that had sexual psychopath statutes have repealed them.3 Minnesota is one of thirteen jurisdictions which retain such laws,4 despite outspoken criticism of
In the more than half a century since its holding in Pearson, the United States Supreme Court has decided a number of cases involving a state‘s power to confine individuals without a criminal conviction. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (commitment for mental retardation); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (commitment for mental illness); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (pretrial commitment of incompetent criminal defendants).
Appellant argues that many of these civil commitment cases, including most recently, Foucha v. Louisiana, U.S., 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), render
In Foucha, the United States Supreme Court held that a Louisiana civil commitment statute that allowed a person acquitted by reason of insanity, who had an antisocial personality disorder but no longer had a mental illness, to remain indefinitely committed to a mental institution on the basis of dangerousness alone violated due process. U.S. at , 112 S.Ct. at 1787. Terry Foucha, charged by Louisiana authorities with aggravated burglary and illegal discharge of a firearm, was found not guilty by reason of insanity and committed to a mental institution. Id. at 1782. Four years later a review panel at the institution, convened to
At the hearing required to determine dangerousness, the trial court received (1) the report of the two-member sanity commission that Foucha “is presently in remission from mental illness [but] [w]e cannot certify that he would not constitute a menace to himself or others if released,” and (2) the testimony of one of the doctors on the commission, who had also conducted the pretrial examination, that Foucha had recovered from a temporary drug-induced psychosis and was in “good shape” mentally but had “an antisocial personality, a condition that is not a mental disease and that is untreatable.” Id. On the basis of several altercations in which Foucha had been involved at the institution, the doctor testified he would not feel comfortable certifying that Foucha would not be a danger to himself or other people. Id. U.S. at—, 112 S.Ct. at 1782-83. The trial court determined that Foucha was dangerous to himself and others and ordered him returned to the mental institution. The state court of appeals refused supervisory writs. The Louisiana Supreme Court affirmed, holding that the statutory provision permitting confinement of an insanity acquittee based on dangerousness alone did not violate the Due Process Clause nor the Equal Protection Clause. The United States Supreme Court granted certiorari. Id.
The Court noted at the outset of its substantive due process analysis that the State was no longer entitled to hold Foucha in a psychiatric facility as an insanity acquittee because when he regained his sanity, that basis for holding him had disappeared.7 Foucha, U.S. at, 112 S.Ct. at 1784.
Nor, in the Court‘s view, should Foucha be held as a mentally ill person because he was not suffering from a mental disease or illness and “[d]ue process requires that the nature of commitment bear some reasonable relatiоn to the purpose for which the individual is committed.” Id. U.S. at , 112 S.Ct. at 1785; Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972). The State, the Court said, sought to perpetuate Foucha‘s confinement on the basis of his antisocial personality which, as evidenced by his conduct at the facility, the trial court found rendered him a danger to himself or others. U.S. at , 112 S.Ct. at 1784. This basis the Court found fraught not only with difficulties but unconstitutional. “[T]he Due Process Clause,” the Court stated, “contains a substantive component that bars certain arbitrary, wrongful government actions regardless of the fairness of the proceedings used to implement them.” Id. U.S. at —, 112 S.Ct. at 1785 (quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990)). “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action.” Foucha, U.S. at, 112 S.Ct. at 1785; Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982). “[C]ommitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Jones, 463 U.S. at 361, 103 S.Ct. at 3048. The Court recognized that by indefinitely committing Foucha to a mental institution on the basis of dangerousness alone, the State was depriving him of a fundamental right, and, without articulating the strict scrutiny standard, the Court looked for the existence of a compelling governmental interest to justify that deprivation.8
The Foucha court found that the Louisiana statute did not fall within any of these constitutionally-acceptable reasons for involuntary confinement because the appellant had not been convicted, because the state did not assert that the appellant was mentally ill, and because the statute was not sufficiently narrow. U.S. at—, 112 S.Ct. at 1786-87. To accept the State‘s rationale that Foucha may be held indefinitely because he once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, the Court said, “would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct.” Id. U.S. at, 112 S.Ct. at 1787. The Court held the Louisiana statute permitting the indefinite detention of insanity acquittees who are not mentally ill and do not prove they would not be dangerous to others not to be “one of those carefully limited exceptions permitted by the Due Process Clause.” Id.
Examination of the Minnesota Psychopathic Personality Statutes in the substantive due process light of Foucha, starts by recognizing the fundamental nature of a person‘s right to be free from bodily restraint. That right “has аlways been at the core of the liberty protected by the Due Process Clause” which “contains a substantive component that bars certain arbitrary, wrongful government actions regardless of the fairness of the proceedings used to implement them.” Foucha, U.S. at , 112 S.Ct. at 1785. The state‘s commitment of Blodgett as a psychopathic personality deprives him of the fundamental right to be free from physical confinement. Deprivation or infringement of a fundamental right requires the state to prove the existence of a compelling governmental interest in continuing that confinement and to demonstrate that no alternative means are available that involve a lesser deprivation of liberty. See supra note 8.
Foucha has set out the limited circumstances under which the state may constitutionally defeat an individual‘s interest in physical liberty. Minnesota Statutes §§ 526.09-.10, like the Louisiana statute, fail to fall within those constitutional limits. First, commitment as a psychopathic personality under the statute is not a criminal conviction for which an individual can be imprisoned. Appellant was convicted of two counts of criminal sexual conduct and only after he had served his sentence for those crimes was he committed under
In Salerno, the United States Supreme Court found such an exception and upheld the constitutionality of the Federal Bail Reform Act of 1984, which provided for pretrial detention of certain defendants found likely to commit dangerous crimes while awaiting trial. Salerno did not save Louisiana‘s scheme of confinement in Foucha, however, and it will not save
The Salerno court emphаsized that the detention there found to be constitutionally permissible for pre-trial detainees was strictly limited in duration by the stringent time limitations of the Speedy Trial Act. 481 U.S. at 747, 107 S.Ct. at 2101. While the constitutionally permissible duration of confinement of persons committed as mentally ill and dangerous may be longer than that of pre-trial detainees, the duration of that confinement is limited by the reasonable possibility under
Furthermore, how can Blodgett, or any person committed under the psychopathic personality statute, show he is “no longer dangerous to the public,” when, if the Pearson standard has been followed, it has already been established that he has an utter lack of power to control his sexual impulses as evidenced by a habitual course of misconduct in sexual matters which makes it likely that he will inflict injury, loss, pain or other evil on the object of his uncontrolled and uncontrollable desire and when the lack of any recent overt acts may well be explained by the control under which he has been placed at the security hospital? The statute thus has the effect of “substituting confinement for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.” Foucha, U.S. at , 112 S.Ct. at 1787.
The state argues forcefully that the Psychopathic Personality Statutes serve the state‘s compelling interest under its police power to protect the public from dangerous sexual offenders.9 Jones v. United Stаtes, 463 U.S. 354, 366, 368, 103 S.Ct. 3043, 3051-52, 77 L.Ed.2d 694 (1983), and the state‘s legitimate interest under its parens patriae power to provide treatment to its citizens who are unable because of mental disorders to help themselves. The state points to three commitment statutes, in addition to
The state has not adequately explained why its police power interest cannot be vindicated by ordinary criminal processes involving charge and conviction, the use of enhanced sentences for recidivists,11 and other constitutionally permissible means of dealing with patterns of criminal conduct. See Foucha, U.S. at—, 112 S.Ct. at 1786-87. Nor has the state shown that confinement of psychopathic personalities is even rationally related to the asserted purpose of treatment as required by Jackson, 406 U.S. at 738, 92 S.Ct. at 1858. (“At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.“) Appellant does not suffer from a medically recognized mental illness; he has a personality disorder for which, at least at this point, there appears to be no treatment available.12 The Minnesota Psychopathic Personality Statutes,
Appellant also argues that section 526.09 violates his Fourteenth Amendment right to Equal Protection because it creates a class of citizens, identified solely by legislatively defined behavior and deprives those citizens of the fundamental right to liberty, without either a criminal conviction or a finding that they suffer from a medically defined, clinically valid illness that requires hospitalization for reasons of safety to the individual or the public.13 The Equal Protection Clause of the Fourteenth Amendment requires that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). In Pearson, the United States Supreme Court used a rational basis test to reject Pearson‘s equal protection argument, stating that “the legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.” 309 U.S. at 275, 60 S.Ct. at 526. Relying on Pearson, the court of appeals used the same analysis in this case. In re Blodgett, 490 N.W.2d at 645-46. It is questionable, however, in light of recent equal protection analysis, whether these cases employed the corrеct level of scrutiny.14 While, as a general rule, legislation is presumed valid if the classification drawn by the statute is rationally related to a legitimate state interest, City of Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254, that rule gives way when the statute impinges on a fundamental right protected by the constitution. Since the statutory classification here burdens the fundamental right to liberty, the Psychopathic Personality Statute can be upheld only if the state has a compelling interest, a “particularly convincing reason,” for confining in a mental institution a class of people with psychopathic personalities when it does not confine other classes of people who have committed criminal acts and who cannot later prove that they are not dangerous. Foucha, U.S. at , 112 S.Ct. at 1788. As discussed above, the state‘s asserted interests—protection of citizens under its police power and treatment of psychopathic personalities under its parens patriae power—do not meet this standard.
Though we will declare no statute unconstitutional “if by any reasonable construction it can be given a meaning in harmony with the fundamental law,” State v. Oman, 261 Minn. 10, 18, 110 N.W.2d 514, 520 (1960), statutes which permit the involuntary and indefinite confinement of a non-mentally ill, though potentially dangerous, individual suffering from an untreatable personality disorder cannot pass scrutiny. “Confinement based on what amounts to a propensity for dangerousness unrelated to mental illness and for which no treatment is required ‘is nothing more than preventive detention, a concept foreign to our constitutional order.‘” Reome v. Levine, 692 F.Supp. 1046, 1051 (D.Minn.1988). I would hold that the Minnesota Psychopathic Personality Statutes,
KEITH, Chief Justice (dissenting).
I join the dissent of Justice Wahl.
TOMLJANOVICH, Justice (dissenting).
I join the dissent of Justice Wahl.