OPINION
This appeal arises from a district court order for an evidentiary hearing to investigate the efficacy of treatment in the Minnesota Sex Offender Program (MSOP). Appellants, Minnesota Department of Human Services and Olmsted County, contend that evaluating the adequacy of treatment for a proposed patient is premature before commitment or treatment occurs.
Because right-to-treatment claims are not ripe before commitment and because precedents rule out the pre-commitment inquiry, we reverse the pre-commitment hearing order and remand for further proceedings on the initial commitment petition.
FACTS
Olmsted County petitioned for the civil commitment of respondent Travis on December 5, 2005. Two psychologists initially evaluated respondent. Dr. Rosemary Linderman concluded that respondent met the criteria for commitment as a sexually dangerous person (SDP), but recommended a stay of commitment proceedings to allow respondent to participate in sex-offender treatment without hospitalization in the MSOP. Dr. Peter Meyers concluded that respondent met the SDP criteria and the criteria for commitment as a sexual psychopathic personality (SPP) and recommended commitment as an SDP and SPP to the MSOP. The parties agreed to stay the proceedings while respondent participated in voluntary alternative treatment. After the court learned that behavioral issues led to respondent’s discharge from the voluntary program, the court scheduled a pretrial conference for civil commitment to occur in May 2008. At the conference, Dr. Linderman’s updated report recommended commitment both as an SDP and SPP. Later, a third examiner, Dr. Paul Reitman, also concluded that respondent met both sets of criteria, but he recommended another stay for treatment without commitment.
At the pretrial conference, respondent provided notice to the county and the attorney general that he was challenging the constitutionality of Minn.Stat. §§ 253B.18, subd. 1(a), 253B.185, subd. 1 (2008). Respondent requested an order declaring that both commitment statutes are “rendered unconstitutional by their administration” and also are unconstitutional because they use the clear-and-convincing standard rather than the beyond-a-reasonable-doubt standard. 1 Following a hearing on this motion in July, the district court issued an order in November that called for an investigatory hearing and related discovery.
In support of its decision, the district court explained:
The outer boundaries of involuntary civil commitment should be carefully policed by the courts.... In patrolling this boundary, courts must be mindful that treatment serves as the sole consideration that inoculates long term, secure confinement against the “punishment” label. Without careful judicial scrutiny to root out ineffective treatment programs, SDP/SPP commitment becomes indistinguishable from lifetime imprisonment. 2
The court placed the burden of proof on the petitioner and declared that its showing would be subject to “strict scrutiny.” The court characterized respondent’s chal
It is alarming when one compares the current near zero “success” rates of the program with the fact that at least some of the earlier laws had eventually released as many as 50 percent of those committed. As a result, rather than being a “step away” from confinements for dangerousness alone, the actual implementation of the SDP/SPP laws suggest a regime of [preventive] detention itself, heretofore anathema to due process.
The district court’s order stated that the hearing to follow would involve “an extensive inquiry into the conditions of confinement at MSOP,” including past practices, patients’ duration in the MSOP, any deficiencies in the program, and a “longitudinal pattern” of MSOP structure and implementation. The court indicated that it would consider “the amount of treatment provided (i.e. number of hours), ... a professional evaluation of whether or not the program meets professional sex offender treatment standards, and ... an evaluation of discharge patterns.” 3
After the July hearing, but before the November order, appellant Minnesota Department of Human Services (DHS) moved to intervene. Respondent and the county stipulated to allow the intervention. Appellants DHS and the county sought reconsideration of the November order and made these arguments: (1) respondent’s challenge was not ripe because he had not begun treatment; (2) evidence regarding the history of the MSOP is irrelevant because the affidavit of the current program director provided sufficient information about the MSOP; and (3) even if historical evidence was relevant, discovery would be overly burdensome for appellants. Appellants also sought to stay the November order pending appellate review.
The district court heard the reconsideration motions and issued a second order in December 2008. The court placed the burden of proof on respondent and required respondent to establish unconstitutionality beyond a reasonable doubt. This shift reflected the court’s conclusion that the previous “strict scrutiny” burden “would apply to ‘facial’ due-process challenges to the statute,” already determined, but that respondent challenged the statutes “as applied.” 4 The court denied appellants’ request for a stay and determined that respondent’s claim was ripe because his commitment was “certainly impending.” Appellants then petitioned for discretionary review by this court, which was granted.
ISSUES
1. Is respondent’s claim ripe for inquiry?
2. Can the district court examine substantive due process in a challenge to the constitutional purpose of civil commitment statutes by investigating treatment in
3. Did the district court err in shifting the burden of proof on respondent’s claim that the statutes violate the constitution?
ANALYSIS
The district court’s order has broad implications, both in terms of announcing a substantive-due-process doctrine and launching a “sweeping examination” of the MSOP. 5 But the scope of the issues in the case is decidedly confined. Similarly, the range of a necessary examination of precedents does not suggest the breadth of our review.
Thus, we note at the outset of this analysis that our review does not address a large number of constitutional topics related to commitments under the relevant statutes. Except in the context of an initial examination of ripeness, our decision does not deal with the topic of substantive due process in terms of the patient’s right to treatment (or like statutory rights), a concept that implicates the patient’s treatment experience. Likewise, the decision does not address, either favorably or adversely, the thesis in a law review article that the district court cited as authority for its orders but that deals in fact with another topic. See Janus, supra at 322 (favoring a patient’s enlarged substantive-due-process right for release following a period of treatment).
Similarly, this decision does not address due-process claims premised on application of the statutes to the pre-commitment condition of a prospective patient. And the decision has no direct affect on numerous other claims that commitments, which deny some process available in criminal cases, are punitive or merely preventive, including the topics of double jeopardy, ex post facto, cruel punishment, trial process, and equal protection of the laws. Similarly, although the district court’s wide-ranging inquiry conflicts with governing cases, our decision does not address a focused inquiry on narrowly defined topics.
Finally, as will be stated more fully later in this opinion, we do not address the significance of public information discussed by amicus curiae and briefly noted by the district court.
1.
Respondent asserts that the SDP/ SPP commitment statutes are “unconstitutional” because of their “administration” but fails to articulate the substantive basis for a constitutional determination. Concluding that the district court was examining respondent’s right to treatment, appellants contend that respondent’s claim is not ripe because respondent has not been
Justiciable controversies are required for adjudication because courts do not issue advisory opinions.
Izaak Walton League of Am. Endowment, Inc. v. State, Dep’t of Natural Res.,
Ripeness seeks to prevent courts’ involvement “in abstract disagreements over administrative policies.”
Leiendecker v. Asian Women United of Minn.,
To the extent that respondent’s argument involves his right to treatment, the issue is not ripe. Respondent’s injury is neither direct nor imminent because the district court has not found that he meets the commitment criteria — only that commitment is likely. Without commitment as an SDP or SPP to MSOP, treatment at MSOP will not occur, and respondent’s injury is only a hypothetical possibility.
See Lee,
228 Minn, at 111,
Other Minnesota cases have concluded that the right-to-treatment argument is premature even after the district court orders civil or criminal commitment.
See Bailey v. Noot,
In addition, respondent shows no hardship in withholding consideration, no adverse affect of delay before treatment is ordered and occurs. As appellants note, there is no showing that respondent could not raise his right-to-treatment argument through other legal avenues after commitment, such as habeas corpus, 42 U.S.C. § 1983 (2006), declaratory or injunctive re
Because respondent has not been committed, has not yet received MSOP treatment, and may have other legal avenues, none of his arguments relating to his right to treatment are ripe, and neither this court nor the district court reach the claims. Appellants are entitled to relief on this issue.
2.
Substance and Breadth of District Court Inquw'y
Appellants are not entitled to a similar determination to the extent that the district court has identified, separate from a right to treatment inquiry, a substantive-due-process standard that permits a pre-commitment investigation of the purpose of the SDP/SPP statutes by examining past and present treatment practices. Neither the court nor respondent has narrowly confined their rationale to the subject of respondent’s right to treatment. Yet, despite the ripeness of the alternative examination that may he at the root of the district court’s order, the investigation has no merit because it conflicts with relevant appellate decisions in Minnesota, other states, and the federal courts.
Respondent and amicus curiae characterize the district court’s constitutional examination by arguing that the civil commitment statutes are “unconstitutional by their administration” based on “persistent patterns of implementation.” They contend that examining treatment at MSOP by weighing information such as release patterns and confinement conditions proves that the statutes are unconstitutional and should not be applied to respondent. In other words, they assert that the district court should examine respondent’s possible confinement by investigating the confinement of others. These arguments fail in the face of governing caselaw.
Because the district court cited for support only the 2003 law review article coauthored by amicus curiae, and because respondent defers to amicus for detailing and supporting the constitutional rationale underlying the district court’s order, our review necessarily centers on the materials in the amicus brief, which include a reference to authorities and discussion in the author’s earlier article.
We repeat that the substantive-due-process right proposed in amicus’s 2003 article was in the form of an expanded right of release for committed patients, not a pre-commitment inquiry.
See
Janus,
supra
at 322 (questioning when “substandard conditions mandate the release of detainees, as opposed to simply supporting injunctive or monetary relief’). Moreover, the case discussion in the article suggested an environment for such a legal development, not that the proposition was currently permitted.
Id.
at 370-78. Thus, for example, the article discusses the decision in
Seling v. Young,
Minnesota Cases
The cornerstone of Minnesota’s recent jurisprudence on the constitutional validity of the SDP/SPP statutes is the 15-year-old holding of the supreme court in
In re Blodgett,
Following the district court’s initial commitment of Blodgett, the court conducted a 60-day review hearing, at which Blod-gett challenged the statute’s constitutionality.
Blodgett,
Upon further review, the supreme court examined cases dealing with application of commitment standards of law, beginning with discussion of
State ex rel. Pearson v. Probate Court,
Blodgett argued that recent Supreme Court decisions, such as
Foucha v. Louisiana,
Most significant to the case now on appeal, the supreme court then addressed the question of whether the psychopathic personality condition was treatable or whether confinement was merely preventive detention. Id. at 916. The court stated that even when treatment is problematic, the state’s interest in others’ safety is no less legitimate and compelling. Id. And the court concluded that if confinement is programmed to provide treatment and guarantees periodic review of the need for treatment, due process is satisfied. Id. The court determined that MSOP provided both and concluded that the PP Act did not violate substantive due process. Id.
Amicus curiae infers from
Blodgett
the declaration of a judicial obligation to monitor implementation of the act. But the demands of due process were found specif
The
Blodgett
court also declared that the commitment act did not violate equal protection.
Id.
at 916-17. After determining that the district court had properly required clear and convincing evidence, the court also approved the standard of proof and the right to counsel.
Id.
at 917. The court ultimately concluded that
Pearson
should continue to be followed “until the United States Supreme Court says otherwise.”
Blodgett,
More recent Minnesota precedents confirm an examination of constitutional validity that addresses the proposed patient’s condition and the commitment standards, not the implementation of treatment programs with other, committed patients. In
In re Linehan,
After Linehan’s release, following the supreme court’s reversal of his PP Act commitment, the legislature passed the SDP Act, and the state petitioned to civilly commit Linehan under this statute.
Linehan III,
The
Linehan III
court employed a strict scrutiny standard and placed the burden on the state, but determined, as it had in
Blodgett,
that protecting the public from sexual assaults and treating and caring for mentally disordered people qualified as compelling interests.
Linehan III,
The court also concluded that the SDP Act was “facially civil and [was] not so punitive in purpose or effect to trigger” the ex post facto or double jeopardy clauses. Id. at 188-89. On this question, by noting the absence of evidence that the treatment provided was a sham, the court did not preclude a different analysis on a better record. Id.
Finally, in
Hince v. O’Keefe,
In its rejection of state arguments that distinguished between MSOP facilities and mental-illness treatment facilities, the Hince court expressed concern about the constitutional implications for SDP and SPP commitments if mental illness were not a component of civil commitment under those acts. Id. at 583. Amicus curiae in this case cites Hince as having warned that ineffective implementation could render the SDP/SPP statutes unconstitutional. But Hince addressed the rights of those already committed to seek release and stressed the importance of focusing on the patient’s mental illness. Id. It does not support a pre-commitment inquiry aimed at showing contrast between statutory provisions and actual practice.
In sum, the Minnesota cases examine the language of the statutes, legislative history and intent, and legal precedents. See id. at 580-82 (examining SDP Act in light of legal precedents). They require a focus on the condition of an individual committed patient or a prospective patient. The statutes involved have repeatedly survived objections to facial validity, and none of the cited cases provide support for a pre-commitment “as-applied” challenge that would be proved by looking at the cumulative experience of all those who have previously been committed and treated.
The United States Supreme Court
The Minnesota cases through 1999
(Linehan IV)
also reflect the decisions of the United Stated Supreme Court in
Pearson, Foucha,
and
Hendricks. See, e.g., Linehan III,
The 2003 depiction of law by amicus was inclusive of
Seling,
in which the Supreme Court, four years after
Hendricks,
addressed Washington’s civil commitment act.
Seling,
The
Seling
Court reviewed the Ninth Circuit’s decision to uphold patient Young’s ex post facto and double jeopardy challenges to the Washington civil commitment statute.
Id.
at 258-59,
The Supreme Court observed at the outset of its analysis the similarity of the Washington act to the Kansas scheme reviewed in
Hendricks. Seling,
The Court concluded that such an as-applied examination would be “unworkable ... an analysis [that] would never conclusively resolve whether a particular scheme is punitive” and would “prevent a final determination of the scheme’s validity under the Double Jeopardy and Ex Post Facto Clauses.”
Id.
The Court reached this conclusion because the confinement spans a time period under changing conditions; the Court noted the “inherent difficulty in ascertaining current conditions and predicting future events.”
Id.
at 267,
Thus, insofar as
Seling
addresses an inquiry on actual practices, it negates their significance. This being said, the decision specifically contemplates a patient’s rights to demand treatment. The Supreme Court noted that Young and others like him had other remedies like “a state law cause of action [on right to treatment],” which would belong in the Washington courts; challenges in state and federal courts using the federal Constitution; or a § 1983 action, which Young already had pending against the facility.
Id.
at 265,
Further addressing Young’s assertions on actual practices, the
Seling
Court declared that, “[w]hatever [precedents] may suggest about the relevance of conditions of confinement, they do not endorse” an approach that would “render the inquiry ... completely open-ended.”
Id.
at 266-67,
In sum, the Supreme Court precedents preclude the district court’s substantive-due-process inquiry, calling instead for protecting an individual’s right to treatment and examining the facial topics fully addressed by precedents in Minnesota. Seling adds no further dimension to the law, questions the fruitfulness of any effort to examine practice, and specifically denounces the occurrence of a completely open-ended inquiry.
Cases from Other Jurisdictions
Amicus curiae cites four other cases to support the district court’s orders. We examine these as well in the absence of citation of supporting authorities by the district court or respondent.
Sas v. Maryland,
But the Sas court specifically anticipated a study of implementation or administration only to determine if this demonstrates civil process permitting denial of conventional criminal procedural safeguards in the commitment proceedings. Id. at 509. The court also anticipated the hearing would permit examining equal protection questions, implications of cruel treatment for a mere property offender, expert testimony indicating whether the statute is unconstitutionally vague, and procedures in place to protect the patient’s right to confrontation. Id. at 509, 514. Moreover, having been decided 40 years before Sel-ing, Sas has no occasion to deal with the extensive intervening Supreme Court jurisprudence, including that Court’s declarations on the impropriety of examining actual administration.
In
Commonwealth v. Page,
Page sought a jury trial and argued that, because no treatment center had been established, the statutory provisions about commitment were inoperative until the center was established. Id. at 84. Holding that this request had merit, the Massachusetts court determined that Page’s commitment, without a treatment program to carry out the purpose of the act, amounted to confinement in prison without a jury trial for an indefinite period after he had served his sentence. Id. at 86.
But
Page
goes to basic programming. The court’s concern was prompted by staff testimony that committed people were placed in Concord’s general prison population, the existing treatment center was only for diagnostic purposes, and there were only 12 beds in the center.
Id.
at 84-85. The staff also testified that the center had no separate staff to treat sex offenders and that the only available treatment for those committed for periods longer than required for diagnosis “was the program of group and individual psychiatric therapy for the total prison population which might include sex offenders.”
Id.
at 85 (quotation marks omitted). The court held that “a confinement in a prison which
The circumstances in
Page
fundamentally contrast with the current treatment programming in Minnesota. This was determined in
Blodgett
in 1994.
Blodgett,
Finally, amicus curiae cites two. decisions of the Washington Supreme Court, but neither case leaves room for the judicial inquiry into practices ordered by the district court.
In the case of
In re Young,
the Washington Supreme Court’s conclusions provide authority neither for a substantive-due-process inquiry into practice nor an open-ended form of investigation.
Responding to the argument that treatment of sex offenders was impossible, the court noted that “petitioners have failed to show that the specific conditions of confinement are incompatible with treatment.” Id. at 1003 (emphasis in original). And the court concluded that the act provided for treatment and the petitioners have not shown that the treatment “cannot be effectuated under the Statute’s terms.” Id.
These observations on deficiencies in proof have evident reference to the nature of treatment programming, not the breadth of prospective proof. In
Young,
the Washington Supreme Court cited as its point of reference
Allen v. Illinois,
Finally, amicus curiae cites
In re Turay,
Turay’s arguments in regard to this issue are meritless and demonstrate a fundamental misunderstanding of the purpose of [the] commitment proceeding. The trier of fact’s role in [the] proceeding, as the trial judge correctly noted, is to determine whether the defendant constitutes [one whose condition requires commitment]; it is not to evaluate the potential conditions of confinement. ...
Id. at 803 (emphasis in original).
The
Turay
court adds: “[A] person committed under [the statute] may not challenge the actual conditions of their confinement, or the quality of the treatment at the [state] facility until they have been ... committed.... ”
Id.
The case deals with
With similar impact, and with a rationale matched by the Supreme Court in Seling, the Turay court rejected an “as-applied” study of the civil nature of commitment to examine Turay’s double jeopardy claim. Id. at 810. The court acknowledged that this analysis precludes an as-applied analysis until after the patient is committed. But the court observed that the patient had ample remedies after commitment, already evident for Turay because of his success in gaining federal court monitoring of his treatment conditions. Id. at 811-12.
In sum, amicus curiae furnishes this court a case analysis, filling a gap left by the district court and respondent. But none of the cases actually permit the substantive-due-process approach of the district court.
Because a review of precedents leaves no room for the district court’s substantive-due-process inquiry, we need not address appellants’ additional arguments either that the court hearing and preceding discovery would be overly burdensome or should be conditioned upon an offer of proof.
Public Information
The brief of amicus curiae gives closing emphasis to public information on commitment laws and their implementation; the brief states that this information makes it likely that a district court hearing will show a scheme of preventive detention. This argument encompasses public records and newspaper articles, articles by amicus and others, and legislative recordings. The argument does not affect our analysis of the district court’s hearing order, which is not permitted by governing cases.
The brief also asserts that this information constitutes evidence, even without an evidentiary hearing, “supporting an inference that the true purpose of the sex offender commitment scheme is punitive.” And the district court stated its conclusion that discharge information suggests the statutes are “anathema” to due process.
We do not examine the impact of these records. The record gives scant attention to this information, except as respondent argued and the district court agreed, without explanation, that discharge information was probative. Thus, the district court has not analyzed either the relevance or the weight of these public records. As amicus curiae acknowledges, drawing inferences from the facts is a matter assigned, in the first instance, to the district court.
Moreover, the district court also had before it the affidavit of the MSOP director, but its contents were not discussed either by respondent or the court. This affidavit (1) demonstrates familiarity with program practices, (2) portrays the adequacy of program design and staffing, (3) details the phases of treatment leading to intensive supervision, (4) reports that the program is progressive, recently revamped, and thus improved and up-to-date, (5) says the program is in compliance with relevant standards, which are need-based, and (6) reports the number of patients in advanced treatment stages.
Our review of this public information is also inappropriate because no authority has been furnished that shows the significance of these records, pertinent either to substantive due process or to other constitutional standards. Amicus curiae cites two cases on this topic, but neither is significant in the context of initial commit
3.
On respondent’s constitutional objections, the district court initially placed the burden on appellants and required the striet-scrutiny standard. Then in its December order, the court shifted the burden to respondent and used the beyond-a-reasonable-doubt standard. With constitutional challenges to the civil commitment statutes, the supreme court has placed the burden on the state and used strict scrutiny to evaluate the civil commitment statutes.
See Linehan III,
Review also is inappropriate on respondent’s additional argument that substantive due process requires the use of a criminal law burden of proof in commitment cases. The district court based its inquiry entirely on general validity and did not rule on respondent’s burden-of-proof assertion.
See id.
at 582-83 (Minn.1988) (noting that appellate court generally will not consider matters not argued to and considered by the district court when “deciding the matter before it”). This court is an error-correcting court and because the district court has not ruled on respondent’s burden-of-proof argument, we are not to address the issue.
See Sefkow v. Sefkow,
DECISION
Respondent’s claim regarding issues related to his right to treatment is not ripe. The district court’s investigation of constitutional violations under a substantive-due-process standard focusing on the treatment of others is precluded by governing cases. We reverse the district court’s decision to hold an evidentiary hearing and conduct related discovery to determine the constitutionality of the SDP and SPP statutes, and we remand for further proceedings.
Reversed and remanded.
Notes
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.
. The district court did not decide respondent's standard-of-proof motion.
. In its language and its citations, it is evident in the November order that the district court relied heavily on a law review article written by the amicus curiae, frequently citing to the article and employing its language. See Eric S. Janus & Wayne A. Logan, Substantive Due Process and the Involuntary Confinement of Sexually Violent Predators, 35 Conn. L.Rev. 319, 369-70 (2003). As observed in our analysis, this reliance occurs despite the contrast between the hearing ordered by the court and the constitutional reform called for in the article.
. On the record, the court explained that the hearing would involve a "sweeping examination” of the MSOP.
. During the hearing, the court further explained the relationship between the hearing and the prospective treatment of respondent: "It is an as-applied. You have to look at this program in its entirety to determine whether or not the statute is unconstitutional as it is applied not only to [respondent] but to everybody else.... I think my memorandum is relatively clear about that, that you have to look' — there has to be some history to this, and I think that there is, and that’s the only way you can determine whether or not something is unconstitutional as applied to put it in its historical perspective.”
. As we stated when describing the facts of the case, the district court reached the conclusion, without citation or discussion of relevant precedents, that substantive due process should be determined by investigating past and present treatment practices, and the experiences of persons other than respondent, to learn if the legislative purpose to provide treatment is fulfilled in fact.
Although the court’s December 2008 order states that its inquiry is directed at the statutes "as applied” and not to the facial characteristics of the statute, a finding of constitutional invalidity would have extensive consequences (affecting respondent and others) that bear twin-like resemblance to those arising when a statute is found facially unconstitutional.
Similarly striking is the court’s determination to set out on an "extensive,” "detailed” inquiry, for the purpose of patrolling or policing treatment programs; the district court advised the parties that "[this] may take a long time.”
Finally, the magnitude of the court’s order is enlarged by its determination, even without a hearing, that discharge information suggests these Minnesota statutes are unconstitutional, "anathema to due process.”