HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/STILI.ASC

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/* This case is reported in 479 N.W. 2d 731 (Minn. App. 1992).
There are laws which permit institutionalization or quarantine of
persons with communicable diseases, including HIV, in the event
that they are willfully spreading the disease. This is one of the
few cases which construes these laws and one of the very small
number of cases in which authorities have sought to do so. The
court here rejects such an attempt (although Stilinovich had been
involuntarily held for some length of time.)

In re STILINOVICH.

Court of Appeals of Minnesota.

Jan. 14, 1992.



OPINION

DAVIES, Judge.

Robert Stilinovich, carrier of the human immunodeficiency virus,
threatened to continue to have sexual intercourse without
disclosing his status and was committed for an indeterminate
period as a psychopathic personality.  He appeals from the
judgment.  We reverse.



FACTS

Appellant came to the attention of authorities when he asked to
be admitted to a regional mental health treatment center. After
making threats to kill a physician and police officers, he was
transported to a hospital.  He escaped from the hospital and,
when apprehended, was transferred to another hospital.

Initially, appellant was out of control. He refused medication
and threatened to kill people.  Fifteen people were required to
subdue appellant and put him in restraints.

/* That fact is mentioned to show the dangerousness of this
person when enraged. */

A petition was filed to commit appellant as mentally ill;  the
petition was later amended to allege he should be committed as a
psychopathic personality.  Appellant was then transferred to a
regional treatment center.  While there, appellant engaged in a
total of nine instances of inappropriate sexual conduct,
including propositioning a vulnerable female to have sex with him
for $50 and becoming verbally abusive when she refused. Appellant
also approached male staff members and touched them sexually.

Appellant has tested positive for the human immunodeficiency
virus (HIV).  He advised a social worker that he wanted to have
sex with people and did not want to tell them he was HIV
positive. The social worker found this to be irresponsible.

/* Would not most people find this to be irresponsible? A
strangely written sentence. */

Appellant also uses the fact that he is HIV positive to
intimidate people by scratching and spitting upon them. The
social worker found appellant to be emotionally unstable,
impulsive, and dangerous to others.

At the initial commitment hearing, Dr. Donn Nelson stated that he
believed appellant had demonstrated a lack of remorse for his
behavior. Nelson also indicated appellant has a pattern of
pathological substance abuse, which apparently has precipitated
brief psychotic episodes. Nelson believes, however, that
appellant is aware of the consequences of his actions and
responds to controls.

Dr. Hector Zeller examined appellant and found that he was
antisocial, impulsive, and showed poor judgment Zeller determined
that appellant was free of mental illness or deficiency and was
able to recognize his actions, but was without a desire to
control himself. He found appellant to be sexually irresponsible
and dangerous and concluded that appellant did not show the self-
control made necessary by the fact he is HIV positive.

After hearing the above evidence, the trial court concluded
appellant was a psychopathic personality and ordered his
commitment to the Minnesota Security Hospital. A review hearing
was held on whether appellant should be committed for an
indeterminate period.

The Minnesota Security Hospital staff conducted an evaluation of
appellant.  It did not recommend continued commitment of
appellant as a psychopathic personality. Their report noted
instead that, while appellant has frequently indicated an intent
to have sex with others, he has not followed through. It found
his behavior was not out of control and that he appeared to
understand the consequences of his actions.

The Security Hospital report recommended that if appellant
continues to threaten others or engages in forced sexual contact,
he should be held accountable through the criminal justice
system.

/* Since it is illegal to commit physical batteries or to engage
in intercourse without warning the other party if a person is HIV
positive. */



Dr. Douglas Fox of the Minnesota Security Hospital indicated the
treatment team was not willing to support a commitment as a
psychopathic personality based upon threatening statements alone.
He was aware of the reported incidents of inappropriate sexual
comments or actions at the regional treatment center, but viewed
them as "puffing."

The trial court found that the hospital characterized appellant's
violent and aggressive conduct, such as spitting, scratching,
fighting, and  making  terroristic threats, as a technique to
intimidate, and as being consistent with having an antisocial
personality. The court also found that appellant continued to
express an intention to have sex with others without advising
them that he is HIV positive. It determined that the evidence
showed he would use intimidation, and even force, in order to
have intercourse if he were in an unsupervised setting, and that
any intercourse by appellant is dangerous.

The trial court concluded appellant continues to be emotionally
unstable and impulsive, lacks good judgment, and fails to show
concern for others regarding the transmission of the HIV virus
through intercourse.  It found the criminal justice system is
unable to address appellant's dangerousness.  It concluded
appellant continues to be irresponsible with respect to sexual
matters and is a danger to others. The trial court ordered
appellant's commitment as a psychopathic personality for an
indeterminate period.

Robert Stilinovich appeals.



ISSUE

Was it clearly erroneous for the court to determine that
appellant has a psychopathic personality and is in need of
indeterminate commitment?



ANALYSIS

A psychopathic personality is defined as: 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 others. Minn.Stat  526.09 (1990)
(emphasis added).  The supreme court has stated:

[T]he language * * * of the act is intended to include those
persons who by an 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) (emphasis added).  It is not
reasonable, however, to apply the statute "to every person guilty
of sexual misconduct nor even to persons having strong sexual
propensities." Id. at 555, 287 N.W. at 302.

The provisions of chapter 253B for commitment as mentally ill and
dangerous apply to a commitment as a psychopathic personality.
Minn.Stat.  526.10, subd. 1. Commitment as a psychopathic
personality requires proof by clear and convincing evidence.
Minn.Stat.  253B.18, subd. 1; see In re Joelson, 344 N.W.2d 613,
614 (Minn. 1984). The court may commit the person after the
initial hearing if it finds the patient has a psychopathic
personality, but the commitment is subject to a mandatory review
conducted by the security hospital within 60 days. Minn.Stat.
526.10, subd.

1.   After the review hearing, if the trial court finds the
patient continues to be a psychopathic personality, the court
shall order commitment for an indeterminate period.   Minn.Stat.
526.10, subd. 1; 253B.18, subd. 3.

Where conflicting evidence is presented as to the existence of a
psychopathic personality, resolution is a question of fact to be
determined by the trial court upon all the evidence. In re
Martenies, 350 N.W.2d 470, 472 (Minn.App.1984), pet. for rev.
denied (Minn. Sept. 12, 1984).  This court, however, need not
defer to the trial court if the trial court erred as a matter of
law. Frost-Benco Elec. Ass'n v. Minnesota.

Appellant first challenges various findings of fact as clearly
erroneous. Appellant specifically challenges the trial court's
finding that he continues to express an intent to have sex with
others and not to tell those partners he is HIV positive. He
further challenges the trial court's finding that records from
the regional treatment center show appellant would use force or
intimidation to have intercourse if not in a supervised setting.
He points to Dr. Fox's testimony that the incidents at the
regional treatment center were mere puffing and propositioning,
appellant further testified that his behavior  is charted daily
and no aggressive or physical incidents involving him have been
recorded.

Appellant argues the record of the June 5 hearing shows he is
aware of his HIV positive status and can exercise responsible
judgment in regard to the disease. He also cites the April 15
psychiatric progress report which states appellant understands
the risks of transmission and appreciates the consequences of his
acts.  Appellant asserts he has not engaged in any behaviors
dangerous to others, but has only acted loud and intimidating.

We determine that the challenged findings are supported by
evidence and are not clearly erroneous. See In re Joelson, 385
N.W.2d 810, 811 (Minn.1986).

Appellant  also  challenges  the  trial court's use of evidence
from the initial hearing in determining that appellant should be
committed for an indeterminate period.  Only Dr. Fox testified at
the review hearing; he opposed appellant's commitment as a
psychopathic personality. However, the trial court's use of
evidence from the initial hearing was proper.  See In re
Clements, 440 N.W.2d 133, 136-37 (Minn.App.1989),  pet. for  rev.
denied (Minn. June 21,1989). At the review hearing the trial
court may consider findings made at the initial commitment
hearing. Minn.R.Civ. Commitment 12.06. The trial court could have
drawn its findings from the testimony at the initial hearing, and
its determinations are not clearly erroneous despite conflicting
evidence.

[1]  Appellant next challenges the propriety of his commitment
even if there was evidence that appellant continued to be
emotionally unstable, lacked good judgment, failed to show
concern for others regarding transmission of the HIV virus
through intercourse, and even if the trial court found he was
irresponsible with regard to sexual matters and a danger to
others because of his expressed intent to have intercourse with
others and not advise them that he is HIV positive. The question
is, appellant argues, whether this is a proper case for use of
the psychopathic personality commitment statute.

It is apparent from the trial court's findings that, ultimately,
it was appellant's HIV-positive status that caused the trial
court to conclude he was dangerous to others.  While appellant's
behavior may fall within the broadest possible literal reading of
the statutory language, it was not necessary or appropriate for
the trial court to stretch the psychopathic personality law to
address the health problem presented by appellant because the
Minnesota Legislature dealt with this type of circumstance in
1987 by passing the Health Threat Procedures Act, Minn.Stat.
144.4171-.4186 (1990).

This more specific act should control.

[W]here two statutes contain general and special provisions which
seemingly are in conflict, the general provision will be taken to
affect only such situations within its general language as are
not within the language of the special provision.

Ehlert v. Graue, 292 Minn. 393, 397-98, 195 N.W.2d 823, 826
(1972);  Minn.Stat.  645.26, subd. 1(1990).  Because of this rule
of statutory application, we hold the trial court erred in
holding that the facts found justify commitment under the
psychopathic personality statute. [footnote 1]

The Health Threat Procedures Act was conceived by the Minnesota
Department of Health.  The Department concluded that traditional
disease control interventions, including those for noncompliant
carriers, "must be modified to fit both the epidemiology of [HIV]
and evolving constitutional law." Janus, AIDS and the Law:
Setting and Evaluating Threshold Standards for Coercive Public
Health Intervention, 14 Wm. Mitchell L.Rev. 503, 520 (1988).
[footnote 2]

The Act provides specific procedures to address the problems of
recalcitrant carriers of the HIV virus. See id. at 521-28. If a
carrier is a health threat to others, the Commissioner of Health
can issue a directive requiring the person to cooperate with
health authorities. Minn.Stat.  144.-4172, subd. 6.  Failure or
refusal of the carrier to comply is grounds for commencing a
proceeding in district court.  Minn. Stat.  144.4173, subds. 1,
2.  In this action, the Commissioner must prove the allegations
by clear and convincing evidence. Minn.Stat.  144.4179, subd. 1.

/* Indeed these remedies include incarceration. */

The court has a number of remedies available, but must use the
remedy which is the "least restrictive alternative * * * to
achieve the desired purpose of preventing or  controlling
communicable  disease." Minn.Stat.  144.4180, subd. 3. The
remedies available include ordering the person to obtain
education and counseling, to participate in a particular
treatment program, to cease and desist from conduct posing a
health threat to others, or to live in a supervised setting.
Minn.Stat.  144.4180, subd. 1.

The court may also commit the person to "an  appropriate
institutional  facility." Minn.Stat.  144.4180, subd. 1(8).
Before the court may commit a person, it must consider the
recommendations of a commitment review panel appointed by the Com
missioner.  Minn.Stat.  144.4180, subd. 2. The commitment order
must set a time period for commitment, which cannot exceed six
months unless good cause is shown for continued commitment.
Minn. Stat.  144.4180, subd. 1(8). Thus, the legislature has
enacted specific legislation to address the problem of a carrier
who poses a health threat to others.  That specific statute
should be applied when it fits.

Further, the more general psychopathic personality act was passed
to deal with conduct, not health conditions. Appellant has not
evidenced an "habitual course of misconduct in sexual matters."
See Pearson, 205 Minn. at 555, 287 N.W. at 302. Although
appellant's behavior evidenced an antisocial personality, it is
clear that, absent his HIV-positive status, his conduct does not
fit what usually has been found for commitment as a psychopathic
personality.  Consider, for example, Martenies, 350 N.W.2d at 471
(committed patient abused seven-year-old stepdaughter with
multiple incidents of oral and anal intercourse, and other forms
of assault, as well as abusing wife and raping unrelated 13-year-
old girl).

[2]  The fact that a person is HIV positive would, of course, not
preclude commitment as a psychopathic personality if the
requirements of that law were otherwise met Where, however,
appellant's commitment as a psychopathic personality is based
upon his status as HIV positive and upon his intent to act in an
irresponsible or reckless manner which could transmit the virus,
and not upon conduct that would justify commitment even without
the HIV condition, we hold the problem should be addressed under
the special provisions of the Health Threat Procedures Act,
Minn.Stat.  144.4171-4186.

We note that despite our holding that commitment of appellant as
a psychopathic personality was improper, his immediate release is
not necessary.  Judgment on a court of appeals decision is
entered not less than 30 days after the filing of the order, or
after denial of a petition for review to the  supreme  court.
Minn.R.Civ.App.P. 136.02; see Hoyt Inv. Co. v. Bloomington
Commerce & Trade Ctr. Assoc.,  418 N.W.2d 173, 176 (Minn.1988).
This court's decision is not final until that time.  Id. We
assume that prior to that time, the Commissioner of Health will,
if appropriate, take action under the Health Threat Procedures
Act, Minn.Stat  144.4171-.4186.



DECISION

The judgment of the trial court, committing appellant as a
psychopathic personality, is reversed.

Reversed.



FOOTNOTES:

1.   In addition, where the provisions of two laws are
irreconcilable, "the law latest in date of final enactment shall
prevail." Minn.Stat.  645.26, subd. 4 (1990).

2.   There have been other proposals to quarantine irresponsible
or recalcitrant carriers of the HIV virus who recklessly spread
the disease. Note. Preserving the Public Health: A Proposal to
Quarantine  Recalcitrant AIDS  Carriers,  68 B.U.L.Rev. 441, 448
(1988).  These proposals address the problem through the public
health laws. Id at 46263.  Coercive public health interventions
are not new, and quarantine, isolation, and compulsory testing
are traditional tools of public health.  Janus, AIDS and the Law,
14 Wm. Mitchell L.Rev. at 504-05.