Filed 12/18/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 304

In the Interest of G.L.D.

----------

Allen Koppy, State’s Attorney, Petitioner and Appellee

v.

G.L.D., Respondent and Appellant

No. 20190179

Appeal from the District Court of Morton County, South Central Judicial 

District, the Honorable Daniel J. Borgen, Judge.

REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

Allen M. Koppy, Morton County State’s Attorney, Mandan, ND, petitioner and 

appellee.

Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.
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Interest of G.L.D.

No. 20190179

VandeWalle, Chief Justice.

[¶1] G.L.D. appealed from a district court order denying his petition for 

discharge from civil commitment as a sexually dangerous individual. We 

conclude the district court did not make sufficient findings of fact, and we 

remand for further findings.

I

[¶2] G.L.D. was civilly committed as a sexually dangerous individual in 2007. 

This Court has affirmed G.L.D.’s commitment. In re G.L.D., 2016 ND 26, 876 

N.W.2d 485 (per curiam); In re G.L.D., 2016 ND 25, 876 N.W.2d 485 (per 

curiam); In re G.L.D., 2014 ND 194, 855 N.W.2d 99; In re G.L.D., 2012 ND 233, 

823 N.W.2d 786 (per curiam); In re G.L.D., 2011 ND 52, 795 N.W.2d 346. 

G.L.D. petitioned the district court for discharge in April 2016, and a discharge

hearing was held in June 2019. At the hearing, Dr. Richard Travis testified for 

the State. Dr. Travis testified that G.L.D. remains a sexually dangerous 

individual subject to continued civil commitment. G.L.D. did not call any 

experts in support of his petition for discharge. At the conclusion of the 

hearing, the district court orally issued the following findings of fact and 

conclusions of law: 

Thank you. And for the record, the Court does weigh this 

that the State is the one moving forward, has the burden and that 

burden beyond a clear and convincing evidence and we go into this 

Prong 1 as stipulated to.

Prong 2, there is a diagnosis. We had – the diagnosis was 

testified to. The State had called one expert. No other experts were 

called. There was some possible impeachment by the respondent 

attempts, but I find the weight and the credibility of the expert 

that was called very credible and I’m giving it great weight 

particularly when we go on to Prongs 3 and 4. And when – I 

intermingle these a little bit because he testified that it is very 

likely that [G.L.D.] would reoffend if released into the community. 

I wrote that down specifically. He said that right before he said, 
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“[G.L.D.] would have serious difficulties controlling his behavior if 

he was released into the community.”

And I’m giving great weight and credibility to the expert in 

that regard. And when we look at In the Interest of J.M., which the 

Court has in front of it, I know that, Mr. Morrow, you had indicated 

in that 2016 case that just not participating in treatment can’t be 

used. But the Court in your – in this latest case reflects that J.M.

not only had not acted out sexually and not had any sexual nature 

rule violations, he has either completed his sexual offender 

treatment and made substantial – or made substantial progress 

since his last evaluation.

The Court goes on to say that the standard is an individual 

may only be committed when the individual has serious difficulties 

controlling his or her sexual predatory behavior making that 

individual a danger to others.

In the case at hand, Dr. Travis said that [G.L.D.] would have 

serious difficulties controlling his behavior in the community and 

that he would be very likely to reoffend. So the Court’s making that 

finding that with the diagnosis and – paraphilia diagnosis with the 

other two diagnoses and the substance abuse issue that’s been in 

remission for a long time because of the controlled environment, 

I’m not really weighing that. There’s been at least, it looks like, 20 

years of sobriety here whether it be forced or not, I don’t – I’m not 

weighing that part of it. 

What I’m really looking at is the nexus between the 

diagnosis and the fact that the doctor feels that based on all the 

circumstances, and that includes behaviors as recent as February 

where [G.L.D.] refused to take part in providing any more 

information that may have helped the doctor to make any kind of 

different diagnosis, his being uncooperative with the – with the 

doctor, it’s hard for the Court to find any other way than the 

commitment would have to continue and the State’s met its 

burden.

[¶3] After it issued its findings, the district court requested the State draft a 

proposed order that G.L.D. remain civilly committed. The proposed order

submitted by the State incorporated by reference the court’s oral findings and 
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did not contain any additional or more specific findings of fact. The court signed 

the State’s proposed order subjecting G.L.D. to continued civil commitment. 

II

[¶4] On appeal, G.L.D. argues the district court made insufficient findings of 

fact to support its conclusion that G.L.D. is likely to engage in further acts of 

sexually predatory conduct and has difficulty controlling his behavior.

This Court reviews civil commitments of sexually dangerous 

individuals under a modified clearly erroneous standard of 

review. Interest of Nelson, 2017 ND 152, ¶ 3, 896 N.W.2d 923. We 

affirm a district court’s order unless it is “induced by an erroneous 

view of the law, or we are firmly convinced the order is not 

supported by clear and convincing evidence.” Id. When reviewing 

the district court’s order, this Court gives “great deference to the 

court’s credibility determinations of expert witnesses and the 

weight to be given their testimony.” In re Johnson, 2016 ND 29, ¶ 

3, 876 N.W.2d 25. To be committed as a sexually dangerous 

individual a person must meet the three statutory elements:

(1) the individual has engaged in sexually predatory conduct,

(2) the individual has a congenital or acquired condition that

is manifested by a sexual disorder, a personality disorder, or

other mental disorder or dysfunction, and

(3) the individual’s condition makes them likely to engage in

further acts of sexually predatory conduct which constitute

a danger to the physical or mental health or safety of others.

N.D.C.C. § 25-03.3-01(8).

In addition to the three statutory elements, the State must 

satisfy substantive due process and prove the committed 

individual has serious difficulty controlling his behavior. In re 

Whitetail, 2013 ND 143, ¶ 5, 835 N.W.2d 827. In Kansas v. Crane, 

the Supreme Court explained that “we did not give to the phrase 

‘lack of control’ a particularly narrow or technical meaning. And 

we recognize that in cases where lack of control is at issue, 

‘inability to control behavior’ will not be demonstrable with 

mathematical precision.” 534 U.S. 407, 413, 122 S. Ct. 867, 151 L.

Ed. 2d 856 (2002). Although not mathematical, the “inability to 
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control behavior . . . must be sufficient to distinguish the dangerous 

sexual offender whose serious mental illness, abnormality, or 

disorder subjects him to civil commitment from the dangerous but 

typical recidivist convicted in an ordinary criminal case.” Id. Thus, 

a “connection between the disorder and the individual’s inability 

to control” his actions must be found. Nelson, 2017 ND 152, ¶ 4, 

896 N.W.2d 923.

North Dakota incorporates the Crane requirement through 

the definition of sexually dangerous individual, which requires 

“proof of a nexus between the requisite disorder and 

dangerousness [to] encompass[ ] proof that the disorder involves 

serious difficulty in controlling behavior and suffices to distinguish 

a dangerous sexual offender whose disorder subjects him to civil 

commitment from the dangerous but typical recidivist in the 

ordinary criminal case.” In re J.M., 2006 ND 96, ¶ 10, 713 N.W.2d 

518. The three statutory elements and the Crane element must be

proven by the State with clear and convincing evidence. Nelson,

2017 ND 152, ¶ 5, 896 N.W.2d 923.

In re T.A.G., 2019 ND 115, ¶¶ 3-5, 926 N.W.2d 702.

[¶5] A district court must make the specific factual findings upon which it 

bases legal conclusions. Nelson, 2017 ND 152, ¶ 5, 896 N.W.2d 923. The district 

court errs as a matter of law when its findings are insufficient or do not support 

the legal conclusions. Id.

Under N.D.R.Civ.P. 52(a)(1), the district court “must find the facts 

specially and state its conclusions of law separately.”

Conclusory, general findings do not comply with 

N.D.R.Civ.P. 52(a), and a finding of fact that merely

states a party has failed in [or has sustained] its

burden of proof is inadequate under the rule. The court

must specifically state the facts upon which its

ultimate conclusion is based on. The purpose of the

rule is to provide the appellate court with an

understanding of the factual issues and the basis of

the district court’s decision. Because this Court defers

to a district court’s choice between two permissible

views of the evidence and the district court decides
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issues of credibility, detailed findings are particularly 

important when there is conflicting or disputed 

evidence. This Court cannot review a district court’s 

decision when the court does not provide any 

indication of the evidentiary and theoretical basis for 

its decision because we are left to speculate what 

evidence was considered and whether the law was 

properly applied. The court errs as a matter of law 

when it does not make the required findings.

In re Johnson, 2015 ND 71, ¶ 8, 861 N.W.2d 484 (quoting In re R.A.S., 2008 

ND 185, ¶ 8, 756 N.W.2d 771).

[¶6] Here, the findings for element three and the Crane requirement are 

insufficient for this Court to understand the basis of the district court’s order. 

The district court did not state which risk factors it found sufficient to support 

the finding that G.L.D. is likely to reoffend. Nor are we provided with sufficient 

findings or reasoning on the Crane element to understand the nexus between 

G.L.D.’s disorder and any behavior demonstrating lack of behavioral control,

such as his unwillingness to participate in Dr. Travis’s evaluation. As a result, 

it is unclear how G.L.D. is different from the dangerous but typical recidivist.

III

[¶7] In light of our heightened standard of review requiring clear and 

convincing evidence, the need for the district court to make specific findings on 

which it bases its decision, and the constitutional concerns surrounding civil 

commitment of sexually dangerous individuals, it is the best practice for 

district courts to issue written findings on each of the four required elements.

This Court is usually better able to discern the evidence relied on by the district 

court when it issues written, rather than oral, findings. Should the district 

court request that a party prepare written findings or an order, the court must 

ensure that the proposed findings on each element are sufficient. If the court 

determines the proposed findings submitted by a party are insufficient, the 

court must issue sufficient written findings to support its decision. 
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IV

[¶8] We conclude the district court’s findings are inadequate to permit 

appellate review. We retain jurisdiction under N.D.R.App.P. 35(a)(3), and 

remand the district court’s commitment order with instructions that, within 

thirty days from the filing of this opinion, the district court make specific 

findings of fact on whether G.L.D. is likely to engage in further acts of sexually 

predatory conduct and whether G.L.D. has a present serious difficulty 

controlling his behavior. 

[¶9] Gerald W. VandeWalle, C.J.

 Daniel J. Crothers

 Lisa Fair McEvers

 Jerod E. Tufte

 Jon J. Jensen