Lincoln J. Brown, Appellant, vs. Linda Anderson, Acting Commissioner of Human Services, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-744

Lincoln J. Brown,

Appellant,

vs.

Linda Anderson,

Acting Commissioner of Human Services,

Respondent.

Filed December 9, 2003

Affirmed

Toussaint, Chief Judge

Probate/Mental Health Division

Hennepin County District Court

File No. PX-94-1456

Lincoln J. Brown, 1111 Highway 73, Moose Lake, MN  55767 (pro se appellant)

Kerri Stahlecker Hermann, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN  55101-2127 (for respondent)

            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This is an appeal from a decision by a judicial appeal panel, which affirmed the order by the Commissioner of Human Services denying appellant Lincoln J. Brown's petition for a provisional or full discharge from commitment as a sexually dangerous person and denying his request for a jury trial.  Brown asserts that he received ineffective assistance of counsel and contends that he was entitled to a jury trial at his hearing before the judicial appeal panel.  Because there is no evidence to support appellant's claim of ineffective assistance of counsel, and because he does not have a right to a jury trial in a judicial appeal panel proceeding, we affirm.

D E C I S I O N

I.

            Appellant Lincoln J. Brown contends that he received ineffective assistance of counsel.  Claims of ineffective assistance of counsel that raise mixed questions of fact and law are reviewed de novo.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

             "A patient has the right to be represented by counsel at any proceeding under" chapter 253B.  Minn. Stat. § 253B.07, subd. 2c (2002).  "The court shall appoint a qualified attorney to represent" the patient.  Id.  Among other things, counsel is to "be a vigorous advocate on behalf of the person."  Id., subd. 2c(4).  But counsel "is not required to file an appeal or commence any proceeding under Minnesota Statutes, chapter 253B, if, in the opinion of counsel, there is an insufficient basis for proceeding."  Minn. R. Civ. Commitment 9.

            This court applies the standard used in criminal cases to evaluate claims of ineffective assistance of counsel in commitment cases.  In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).  "Representation is inadequate if counsel fails to exercise the diligence of a reasonably competent attorney under similar circumstances."  Id.  "Even if counsel's representation is less than perfect, the result of a hearing or trial will be set aside only if counsel's actions so undermine the hearing process that the result is prejudiced."  In re Cordie, 372 N.W.2d 24, 29 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985).  That is, he must "demonstrate that counsel's representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors."  State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003) (quotation omitted).

            The judicial appeal panel appointed counsel for Brown, but he later informed the panel that he had discharged his attorney because of counsel's lack of support for his legal strategy.  Brown asked the panel for an extension of time to submit his written arguments and requested the appointment of another lawyer who would pursue the issues he wished to present.  The panel granted his motion for an extension, but denied his request for the appointment of another attorney.  Ultimately, the judicial appeal panel ruled that Brown failed to present evidence to support his petition for provisional or full discharge.  Appellant argues to this court that this was the fault of his appointed attorney and explains that it was for this reason that he was compelled to discharge his counsel for ineffective assistance.

            Brown has presented no evidence to support his claim of ineffective assistance of counsel, nor has he shown how the outcome would have been different absent counsel's alleged errors.  Consequently, he cannot prevail on his claim of ineffective assistance of counsel.

            Brown also challenges this court's earlier decision denying his motion for appointment of counsel.  Brown must seek review of a decision of this court by filing a petition for review to the supreme court.  Minn. R. Civ. App. P. 117.

II.

            Next, Brown asserts the right to a jury trial under the Minnesota Constitution.  The interpretation and application of the Minnesota Constitution is considered de novo on appeal.  Olson v. Synergistic Tech. Bus. Sys., Inc., 628 N.W.2d 142, 148 (Minn. 2001).

            Brown argues briefly that he was entitled to a jury trial in his original commitment hearings.  Committed persons may challenge the legality of their commitment through an appeal from that commitment, e.g. Minn. Stat. § 253B. 23, subd. 7 (2002), or, for constitutional and jurisdictional issues not previously raised through habeas corpus.  Joelson v. O'Keefe, 594 N.W.2d 905, 908 (Minn. App. 1999), review denied (Minn. July 28, 1999).  The judicial appeal panel did not make decisions as to the original commitment, and only decisions made by the appeal panel are under review here.  See Minn. Stat. § 253B 19, subd. 5 (providing for review of appeal panel decision).

            Brown also claims that he was entitled to a jury trial at the proceeding before the judicial appeal panel.  A committed person may petition a judicial appeal panel for rehearing and reconsideration of a decision by the Commissioner of Human Services denying his petition for discharge.  Minn. Stat. § 253B.19, subd. 2 (2002).  Under the statute, the appeal panel is to decide the petition, and there are no provisions for a jury trial.  Id.

            If a statute does not specifically provide for a jury trial, the "right, if it exists, must arise under the constitution."  Abraham v. County of Hennepin, 639 N.W.2d 342, 348 (Minn. 2002). 

The supreme court has repeatedly rejected claims that a person has a constitutional right to a jury trial to determine whether the person should be committed.  State ex rel Anderson v. U.S. Veterans Hosp., 268 Minn. 213, 221, 128 N.W.2d 710,  716 (1964); State ex rel. Pearson v. Probate Court, 205 Minn. 545, 556-57, 287 N.W. 297, 303 (1939), aff'd, 309 U.S. 270, 60 S. Ct. 523 (1940); In re Vinstad, 169 Minn. 264, 266, 211 N.W. 12, 13 (1926); Joelson, 594 N.W.2d at 910.  Likewise, there is no right to a jury trial in a hearing before the judicial appeal panel.

III.

            Next, Brown contends that he is entitled to a civil jury trial under the Seventh Amendment.  The Eighth Circuit Court of Appeals has recently rejected this argument.  Poole v. Goodno, 335 F.3d 705, 710-11 (8th Cir. 2003).  It held that:  "There is no clearly established supreme court law which holds that due process requires a jury trial in civil commitment proceedings or that incorporates the Seventh Amendment right to a jury for such cases."  Id.  We agree.  Brown's claim under the Due Process Clause of the Fourteenth Amendment also has no merit.

            In summary, Brown has not established he received ineffective assistance of counsel, and he is not entitled to a jury trial in judicial appeal panel proceedings.

            Affirmed.