In re Interest of S.C.

$150,000 amount by which the judgment exceeded the offer.
This was error. Accordingly, we reverse the district court’s
ruling regarding the award of prejudgment interest and set
aside the judgment. We remand with instructions to recalculate
prejudgment interest on the entire $750,000 jury verdict, com-
mencing on the date of Martensen’s offer of settlement which
was later exceeded by the judgment.
CONCLUSION
For reasons explained above, we determine that the district
court did not err when it accepted the jury verdict and awarded
specified costs to Martensen, and we affirm these rulings.
However, the district court erred in the manner by which it
calculated prejudgment interest. We reverse this ruling and set
aside the judgment, and we remand the cause with directions
to the district court to recalculate prejudgment interest on the
entire $750,000 award and direct that judgment thereafter be
entered on the $750,000 award, costs as already determined,
plus the recalculated amount of prejudgment interest.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
G errArd, J., not participating in the decision.
wriGht, J., not participating.
in re interest of s.c., AlleGed to be
A dAnGerous sex offender .
s.c., AppellAnt, v. mentAl heAlth boArd of
the fifth JudiciAl district, Appellee .
810 N.W.2d 699
Filed February 10, 2012. 	No. S-11-186.
1. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
2. Mental Health: Judgments: Appeal and Error. The district court reviews the
determination of a mental health board de novo on the record. In reviewing a
district court’s judgment, an appellate court will affirm unless it finds, as a matter
of law, that clear and convincing evidence does not support the judgment.
294 	283 NebrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

3. Due Process. The Due process Clause applies when government action deprives
a person of liberty or property; accordingly, when there is a claimed denial of due
process, a court must consider the nature of the individual’s claimed interest.
4. ____. A claim that one is being deprived of a liberty interest without due process
of law is typically examined in three stages. The question in the first stage is
whether there is a protected liberty interest at stake. If so, the analysis proceeds
to the second stage, in which it is determined what procedural protections are
required. Upon the resolution of that issue, the analysis moves on to the third and
final stage, in which the facts of the case are examined to ascertain whether there
was a denial of that process which was due.
5. Prisoners: Statutes. Where a right may not otherwise have existed, a state may
create prisoners’ rights through the use of mandatory statutory language.
6. Due Process. There is a crucial distinction between being deprived of a liberty
one has and being denied a conditional liberty that one desires.
7. Convicted Sex Offender: Statutes: Intent. One of the stated purposes of the Sex
Offender Commitment Act, Neb. rev. Stat. § 71-1201 et seq. (reissue 2009), is
to encourage sex offenders to obtain voluntary treatment, but its primary purpose
is the protection of the public from sex offenders who continue to pose a threat.
8. ____: ____: ____. Commitment under the Sex Offender Commitment Act, Neb.
rev. Stat. § 71-1201 et seq. (reissue 2009), is not dependent upon a subject’s
seeking or refusing treatment; instead, the focus is on whether a substantial likeli-
hood exists that the individual will engage in dangerous behavior unless restraints
are applied.
9. Appeal and Error. An argument that does little more than to restate an assign-
ment of error does not support the assignment, and an appellate court will not
address it.
Appeal from the District Court for butler County: mAry c.
G ilbride, Judge. Affirmed.
Thomas J. klein and Darren L. Hartman, of Haessler,
Sullivan & klein, Ltd., for appellant.
Jon bruning, Attorney General, and Stephanie Caldwell for
appellee.
heAvicAn, c.J., connolly, G errArd, stephAn, mccormAck ,
and miller-lermAn, JJ.
heAvicAn, c.J.
INTrODUCTION
S.C. appeals the decision of the butler County District
Court, affirming the decision of the Mental Health board of
the Fifth Judicial District (board). The board found S.C. to be
IN re INTereST OF S.C. 	295
Cite as 283 Neb. 294

a dangerous sex offender under the Sex Offender Commitment
Act (SOCA), Neb. rev. Stat. § 71-1201 et seq. (reissue 2009),
and ordered him to undergo secure inpatient treatment. S.C.
alleges that his due process rights were violated when the State
did not allow him to undergo sex offender treatment while
still incarcerated. S.C. further alleges that the State did not
present clear and convincing evidence that he was a dangerous
sex offender or that secure inpatient treatment was the least
restrictive treatment alternative. We affirm the decision of the
district court.
bACkGrOUND
In 2008, S.C. was convicted of sexual assault of a child in
butler County, Nebraska, and was sentenced to 5 years’ impris-
onment. Near the end of S.C.’s prison term, the State had the
option of seeking to commit S.C. under SOCA, utilizing the
board. Dr. Mark Weilage, a licensed psychologist who works
for the Department of Correctional Services at the Nebraska
State penitentiary, testified at the hearing before the board.
Weilage completed his evaluation of S.C. on July 13,
2010, while S.C. was still incarcerated at the Nebraska State
penitentiary, and recommended that S.C. undergo sex offender
treatment. S.C. apparently indicated that he was willing to
participate in a sex offender treatment program prior to his
release. According to Weilage, the treatment program was
available only at the Lincoln Correctional Center. However,
S.C. had a relative who worked at that facility and, accord-
ing to Weilage, it is the policy of the Nebraska Department
of Correctional Services not to place inmates in a facility at
which a relative is employed. As a result, S.C. was not trans-
ferred from the Nebraska State penitentiary to the Lincoln
Correctional Center and thus did not receive treatment while
incarcerated.
The State filed a petition on August 16, 2010, alleging S.C.
to be a dangerous sex offender. A hearing was held before the
board on August 19. At the hearing, the State presented certi-
fied copies of S.C.’s prior convictions, which included three
convictions for sexual assault of a child and one conviction for
attempted kidnapping of a child.
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Weilage testified regarding S.C.’s evaluation and stated that
the following assessments were completed: the “Static 99r,”
the “Stable 2007,” the “Sex Offender risk Appraisal Guide,”
and the “Hare psychopathy Checklist-revised.” Weilage con-
ducted a clinical interview and a mental status examination,
and he also reviewed S.C.’s institutional and mental health and
treatment records.
The “Static 99r” assesses the risk of recidivism among sex
offenders, and Weilage testified that S.C. scored in the medium-
high risk range to reoffend. The “Stable 2007” assessment is a
guided clinical interview that looks at relatively stable factors
to measure the level of supervision a person would need to
reduce the risk of reoffending. Weilage stated that S.C. fell in
the highest risk range in that assessment. Weilage testified that
S.C. was at high risk for sexual reoffense and had a high need
for treatment.
The “Sex Offender risk Appraisal Guide” measures over-
all risk of violent reoffending among sex offenders. Weilage
testified that S.C. scored in the next-to-highest category for
reoffending. Weilage stated that S.C.’s chances for violent
reoffending within 7 years is 75 percent, and for reoffending
within 10 years is 89 percent. Finally, the “Hare psychopathy
Checklist-revised” measures a person’s level of psychopathy.
Weilage stated that S.C. scored 25 out of 40, which puts S.C.
in a borderline range for psychopathic traits.
Weilage also diagnosed S.C. with alcohol dependency and
stated that S.C. had abused other drugs in the past, includ-
ing cocaine, amphetamines, and cannabis. Weilage stated that
S.C.’s most pressing problem is antisocial personality disorder
and that S.C. had not received treatment for that disorder.
Ultimately, Weilage testified that he believed S.C. met the
criteria to be considered a dangerous sex offender and recom-
mended that S.C. receive treatment at a secure inpatient facil-
ity. Weilage stated that such inpatient treatment was the least
restrictive treatment option. Weilage also believed S.C. was
substantially unable to control his criminal behavior.
S.C. did not present any evidence at the hearing. The board
found there was clear and convincing evidence that S.C. was a
IN re INTereST OF S.C. 	297
Cite as 283 Neb. 294

dangerous sex offender and that secure inpatient treatment was
the least restrictive alternative. The board then committed S.C.
to secure inpatient treatment.
S.C. appealed to the district court, and the district court
affirmed the decision of the board. S.C. appeals.
ASSIGNMeNTS OF errOr
S.C. assigns the district court erred when it found that
(1) S.C.’s due process rights under the 14th Amendment to
the U.S. Constitution and Neb. Const. art. I, § 3, were not vio-
lated when the State of Nebraska failed to provide him with
sex offender treatment services while he was incarcerated and
(2) the board’s factual findings and commitment order were
supported by clear and convincing evidence.
STANDArD OF reVIeW
[1] On a question of law, an appellate court reaches a con-
clusion independent of the court below.1
[2] The district court reviews the determination of a mental
health board de novo on the record.2 In reviewing a district
court’s judgment, we will affirm unless we find, as a matter
of law, that clear and convincing evidence does not support
the judgment.3
ANALYSIS
State Did Not Violate S.C.’s Due Process Rights.
We first note that S.C.’s assignments of error do not clearly
state that he is alleging a violation of his substantive due proc-
ess rights. S.C. does eventually specify that by not provid-
ing him treatment while he was still incarcerated, the State
violated his right to substantive due process. However, S.C.
fails to specify a remedy that would provide redress for the
alleged violation.
As discussed below, S.C. must first establish that he has a
protected liberty interest before this court can address what
1 State v. Huff, 279 Neb. 68, 776 N.W.2d 498 (2009).
2 See In re Interest of D.V., 277 Neb. 586, 763 N.W.2d 717 (2009).
3 See id.
298 	283 NebrASkA repOrTS

procedural protections are required.4 because we find that S.C.
has no protected liberty interest in obtaining sex offender treat-
ment while still incarcerated, S.C.’s substantive due process
claim must fail.
[3-5] The Due process Clause applies when government
action deprives a person of liberty or property; accordingly,
when there is a claimed denial of due process, a court must
consider the nature of the individual’s claimed interest.5 A
claim that one is being deprived of a liberty interest without
due process of law is typically examined in three stages. The
question in the first stage is whether there is a protected lib-
erty interest at stake. If so, the analysis proceeds to the second
stage, in which it is determined what procedural protections are
required. Upon the resolution of that issue, the analysis moves
on to the third and final stage, in which the facts of the case
are examined to ascertain whether there was a denial of that
process which was due.6 Where a right may not otherwise have
existed, a state may create prisoners’ rights through the use of
mandatory statutory language.7
S.C. points to the stated policy purpose of SOCA, contained
in § 71-1202, that “[i]t is the public policy of the State of
Nebraska that dangerous sex offenders be encouraged to obtain
voluntary treatment.” S.C. argues that the Nebraska Department
of Correctional Services should not have been allowed to deny
him treatment while he served his sentence and then commit
him civilly upon his release. S.C. claims this was a violation of
his substantive due process rights.
The only case S.C. cites in support of his argument is Beebe
v. Heil,8 a Colorado federal district court case. Under Colorado
law, a sex offender is required to undergo “‘appropriate’”
treatment, and participation in a treatment program is an
4 See, State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012); State v. Cook,
236 Neb. 636, 463 N.W.2d 573 (1990).
5 Beebe v. Heil, 333 F. Supp. 2d 1011 (D. Colo. 2004).
6 See, Norman, supra note 4; Cook, supra note 4.
7 Beebe, supra note 5, citing Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct.
2963, 41 L. ed. 2d 935 (1974).
8 Beebe, supra note 5.
IN re INTereST OF S.C. 	299
Cite as 283 Neb. 294

absolute prerequisite for release on parole.9 The defendant in
Beebe started treatment, but his participation was terminated
without notice or hearing. The federal district court over-
ruled the defendant’s motion for judgment on the pleadings,
determining that the defendant had stated a claim for violation
of his substantive due process rights because the defendant
had a liberty interest in obtaining treatment. Without treat-
ment, the defendant would not be eligible for release from
prison. And under Colorado law, the State was required to
provide treatment.10
Beebe is inapplicable here. The Colorado statutes make
treatment a mandatory requirement for parole eligibility, and
there are due process protections for denial of treatment.11 In
Nebraska, however, treatment is not a condition of release at
the end of a criminal sentence, nor is there any statute mandat-
ing the State to provide treatment of any kind to inmates. As
noted, § 71-1202 states that “[i]t is the public policy of the
State of Nebraska that dangerous sex offenders be encouraged
to obtain voluntary treatment,” but that language is merely sug-
gestive. It does not create a liberty interest of which S.C. can
claim he was deprived.
[6] Nor does such language create an additional barrier to
S.C.’s release from prison, unlike the language in the Colorado
statutes which made treatment a condition of release. While
S.C. may have desired to begin treatment before being released
from prison, he had no absolute right to such treatment.
“There is a crucial distinction between being deprived of a
liberty one has . . . and being denied a conditional liberty that
one desires.”12
We therefore find that S.C. had no substantive due process
right to sex offender treatment while still incarcerated. We
9 Id. at 1012.
10 Id.
11 Id. See Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. ed. 2d 552
(1980). See, also, In re Interest of J.R., 277 Neb. 362, 762 N.W.2d 305
(2009).
12 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9, 99 S. Ct. 2100, 60
L. ed. 2d 668 (1979).
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further note that SOCA is nonpunitive in nature and allows the
State to seek civil commitment of a dangerous sex offender
upon his or her release from incarceration upon a showing that
he or she is a dangerous sex offender.13
[7] Although S.C. is correct in that one of SOCA’s stated
purposes is to encourage sex offenders to obtain voluntary
treatment, its primary purpose is the protection of the public
from sex offenders who continue to pose a threat.14 As we have
stated in the past, the subject of a civil commitment order has
a protectable interest in his or her liberty, but procedural due
process is satisfied by having a hearing before a mental health
board, during which the State must prove that the subject
is dangerous and that secure inpatient treatment is the least
restrictive treatment alternative.15 Such a civil commitment
under SOCA is completely separate from the terms of incar-
ceration subsequent to a criminal conviction.
[8] Furthermore, commitment under SOCA is not dependent
upon a subject’s seeking or refusing treatment; instead, the
focus is on whether a “substantial likelihood exists that the
individual will engage in dangerous behavior unless restraints
are applied.”16 As discussed below, the State provided clear and
convincing evidence that S.C. was a dangerous sex offender
and that secure inpatient treatment was the least restrictive
alternative. We find S.C.’s first assignment of error to be with-
out merit.
District Court Did Not Err in Finding State Had Proved
by Clear and Convincing Evidence That S.C.
Was Dangerous Sex Offender.
[9] In his second assignment of error, S.C. states that there
was not clear and convincing evidence that he was a dangerous
sex offender. S.C. offers no other argument, however, nor does
he point to any facts that would negate the evidence offered by
the State at the hearing. An argument that does little more than
13 See In re Interest of J.R., supra note 11.
14 See § 71-1202.
15 See In re Interest of J.R., supra note 11.
16 In re Interest of O.S., 277 Neb. 577, 584, 763 N.W.2d 723, 729 (2009).
IN re INTereST OF S.C. 	301
Cite as 283 Neb. 294

to restate an assignment of error does not support the assign-
ment, and this court will not address it.17
And, in any case, S.C.’s contention is without merit. S.C.
had several prior convictions for violent sex offenses against
children, and the State presented clear and convincing evi-
dence that S.C. was substantially likely to engage in dangerous
behavior in the future. Weilage testified that S.C.’s personality
disorder, combined with his history of substance abuse and his
failure to seek treatment outside of prison, increased the likeli-
hood that S.C. would commit another violent sexual crime.
S.C.’s risk of reoffending was considered to be moderate to
very high on the various psychological tests. Weilage testified
that it was his opinion that S.C. was a dangerous sex offender
and that secure inpatient treatment was the least restrictive
alternative. S.C. offered no evidence to rebut that showing. We
therefore reject S.C.’s second assignment of error.
CONCLUSION
S.C. offers little support for the argument that his substantive
due process rights were violated. Obtaining treatment was not
necessary to affect S.C.’s release from prison, and no statutory
language exists to create a substantive right to treatment. S.C.
was committed under SOCA, which is civil and nonpunitive in
nature. The State provided clear and convincing evidence that
S.C. is a dangerous sex offender and that secure inpatient treat-
ment is the least restrictive alternative.
We affirm the decision of the district court.
A ffirmed.
G errArd, J., not participating in the decision.
wriGht, J., not participating.
17 State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
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