In re Interest of J.R.

I n re I nterest of J.r., alleged to be
a dangerous sex offender .
J.r., appellant, v. M ental H ealtH board of tHe
fourtH JudIcIal dIstrIct, appellee .
762 N.W.2d 305
Filed March 13, 2009. 	No. S-07-1300.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to
be constitutional, and all reasonable doubts will be resolved in favor of its
constitutionality.
3. Constitutional Law: Statutes: Legislature: Intent. All reasonable intendments
must be indulged to support the constitutionality of legislative acts, including
classifications adopted by the Legislature.
4. Mental Health: Appeal and Error. The district court reviews the determination
of a mental health board de novo on the record.
5. Judgments: Appeal and Error. In reviewing a district court’s judgment, appel-
late courts will affirm the district court’s judgment unless the appellate court
finds, as a matter of law, that the judgment is not supported by clear and convinc-
ing evidence.
6. Convicted Sex Offender. The purpose of the Sex Offender Commitment Act is
to provide for the court-ordered treatment of sex offenders who have completed
their sentences but continue to pose a threat of harm to others.
7. Mental Health: Convicted Sex Offender. The Sex Offender Commitment Act
provides a separate legal standard for sex offenders, which allows dangerous sex
offenders to meet the standards of a mentally ill, dangerous sex offender who
would not meet the traditional standards of mentally ill and dangerous under the
Nebraska Mental Health Commitment Act.
8. Convicted Sex Offender. The civil commitment procedures of the Sex Offender
Commitment Act apply to presently confined persons who have been convicted of
one or more sex offenses and are scheduled for release.
9. Constitutional Law: Appeal and Error. The Nebraska Supreme Court ordinar-
ily construes Nebraska’s ex post facto clause to provide no greater protections
than those guaranteed by the federal Constitution.
10. Statutes: Constitutional Law: Sentences. Both U.S. Const. art. I, § 10, and Neb.
Const. art. I, § 16, provide that no ex post facto law may be passed. A law which
purports to apply to events that occurred before the law’s enactment, and which
disadvantages a defendant by creating or enhancing penalties that did not exist
when the offense was committed, is an ex post facto law and will not be endorsed
by the courts.
11. Criminal Law: Other Acts: Time. Only retroactive criminal punishment
for past acts is prohibited, and civil disabilities and sanctions may apply
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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retroactively without violating the ex post Facto Clauses of the U.S. and
Nebraska Constitutions.
12. Constitutional Law: Statutes: Sentences: Time: Intent. Whether a statute vio-
lates state and federal constitutional protections against retroactive punishment
is analyzed under the U.S. Supreme Court’s two-prong “intent-effects” test for
analyzing punishment.
13. Convicted Sex Offender: Constitutional Law: Statutes: Legislature: Intent:
Proof. Under the “intent-effects” test, a court first determines whether the
Legislature intended a statutory scheme to be civil. If so, that intent will
be rejected only where the challenger provides the clearest proof that the
statutory scheme is so punitive in either purpose or effect as to negate the
State’s intention.
14. Statutes: Legislature: Intent. In analyzing whether the purpose or effect of
a statute is so punitive as to negate the Legislature’s intent, a court considers
the following factors: (1) whether the sanction involves an affirmative disabil-
ity or restraint; (2) whether it has historically been regarded as punishment;
(3) whether it comes into play only on a finding of scienter; (4) whether its
operation will promote the traditional aims of punishment—retribution and
deterrence; (5) whether the behavior to which it applies is already a crime; (6)
whether an alternative purpose to which it may rationally be connected is assign-
able for it; and (7) whether it appears excessive in relation to the alternative
purpose assigned.
15. Criminal Law: Statutes: Legislature: Intent: Appeal and Error. Whether the
Legislature intended a statutory scheme to be civil or criminal is primarily a mat-
ter of statutory construction. However, an appellate court must also look at the
statute’s structure and design.
16. Constitutional Law: Double Jeopardy. The Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution protects against three distinct abuses: (1) a
second prosecution for the same offense after acquittal, (2) a second prosecu-
tion for the same offense after conviction, and (3) multiple punishments for the
same offense.
17. ____: ____. The protection provided by Nebraska’s double jeopardy clause is
coextensive with that provided by the U.S. Constitution.
18. Constitutional Law: Statutes. It is a long-standing rule that a person to whom a
statute may be constitutionally applied will not be heard to challenge the statute
on the ground that it might conceivably be applied unconstitutionally to others in
situations not before court.
19. Constitutional Law: Equal Protection: Statutes: Presumptions: Proof. Where
a statute is challenged under the equal protection Clause, the general rule is that
legislation is presumed to be valid, and the burden of establishing the unconstitu-
tionality of the statute is on the one attacking its validity.
20. Constitutional Law: Equal Protection. The equal protection Clause under
§ 1 of the 14th Amendment does not forbid classifications; it simply keeps
governmental decisionmakers from treating differently persons who are in all
relevant aspects alike.
IN re INTereST OF J.r. 	363
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21. Equal Protection: Proof. The initial inquiry in an equal protection analysis
focuses on whether the challenger is similarly situated to another group for the
purpose of the challenged governmental action. Absent this threshold showing,
one lacks a viable equal protection claim. In other words, the dissimilar treatment
of dissimilarly situated persons does not violate equal protection rights.
22. Equal Protection: Statutes. In an equal protection challenge to a statute,
the level of judicial scrutiny applied to a particular classification may be
dispositive.
23. Constitutional Law: Statutes. Legislative classifications involving either a sus-
pect class or a fundamental right are analyzed with strict scrutiny, and legislative
classifications not involving a suspect class or fundamental right are analyzed
using rational basis review.
24. Constitutional Law: Statutes: Legislature: Intent. Under rational basis review,
an appellate court will uphold a classification created by the Legislature where it
has a rational means of promoting a legitimate government interest or purpose. In
other words, the difference in classification need only bear some relevance to the
purpose for which the difference is made.
25. Equal Protection: Proof. Under the rational basis test, whether an equal protec-
tion claim challenges a statute or some other government act or decision, the
burden is upon the challenging party to eliminate any reasonably conceivable
state of facts that could provide a rational basis for the classification.
26. Criminal Law: Mental Health: Convicted Sex Offender. Mentally ill sex
offenders are different from mentally ill persons who are not sex offenders due to
the sexual nature of their crimes.
27. Convicted Sex Offender: Proof. In order for a person to be considered a danger-
ous sex offender, the State must prove by clear and convincing evidence that the
person is likely to engage in repeat acts of sexual violence and that he or she is
substantially unable to control his or her criminal behavior.
28. Criminal Law: Mental Health. The key to confinement of a mentally ill person
lies in finding that the person is dangerous and that, absent confinement, the
mentally ill person is likely to engage in particular acts which will result in sub-
stantial harm to himself or others.
29. Mental Health: Due Process: Proof. To comply with due process, there must be
a finding that there is a substantial likelihood that a person will engage in danger-
ous behavior unless restraints are applied.
30. Criminal Law: Mental Health. In determining whether a person is danger-
ous, the focus must be on the person’s condition at the time of the commit-
ment hearing.
31. Mental Health: Other Acts: Proof. The actions and statements of the person
prior to the commitment hearing are probative of the person’s present mental
condition. But, for a past act to have evidentiary value, the past act must have
some foundation for a prediction of future dangerousness, thus being probative of
that issue.
32. Trial: Evidence: Appeal and Error. An appellate court will consider the fact
that the trial court saw and heard the witnesses and observed their demeanor
while testifying, and will give great weight to the trial court’s judgment as
to credibility.
364 	277 NeBrASkA repOrTS

Appeal from the District Court for Douglas County: gregory
M. scHatz, Judge. Affirmed.
Thomas C. riley, Douglas County public Defender, and
Sean M. Conway for appellant.
Jeffrey J. Lux, Deputy Douglas County Attorney, and Michael
W. Jensen for appellee.
H eavIcan, 	c.J., 	WrIgHt, 	connolly, 	gerrard, 	stepHan,
MccorMack , and MIller-lerMan, JJ.
MccorMack , J.
I. NATUre OF CASe
J.r. challenges the constitutionality of the Sex Offender
Commitment Act (SOCA)1 as a violation of equal protection
and double jeopardy, and as an impermissible ex post facto
law under the U.S. Constitution and the Nebraska Constitution.
J.r. also challenges the sufficiency of the evidence supporting
the decisions of the Mental Health Board of the Fourth Judicial
District (the Board) and the district court adjudging him to be
a dangerous sex offender in need of involuntary, inpatient treat-
ment under SOCA.
II. BACkGrOUND
On October 3, 2000, J.r. was convicted of first degree
sexual assault on a child for sexually assaulting his girlfriend’s
daughter. The sexual assaults occurred over a period of years,
starting when the child was in the second grade. The assaults
continued until the seventh grade and progressed from fondling
to sexual intercourse. Two months before being charged, J.r.
sought psychotherapy because he “knew that he had a prob-
lem.” But J.r. was unable to complete his recommended treat-
ment before being sentenced to 10 to 12 years’ imprisonment
for the assaults.
While in prison, J.r. participated in an inpatient sex-offender
program from May 2001 to December 2002. J.r. did not com-
plete this treatment, however, because he was terminated from
1 Neb. rev. Stat. §§ 71-1201 to 71-1226 (Cum. Supp. 2008).
IN re INTereST OF J.r. 	365
Cite as 277 Neb. 362

the program for unsatisfactory progress and an unrelated laun-
dry violation. J.r. did complete other behavior management
groups while in prison.
J.r. was scheduled for discharge from prison on December
12, 2006. On November 6, the deputy county attorney (the
State) filed a petition with the Board seeking to have J.r.
adjudged to be a dangerous sex offender as defined by Neb.
rev. Stat. § 83-174.01(1)(a) (Cum. Supp. 2008) and, accord-
ingly, to have him placed in the custody of the Department of
Health and Human Services for further treatment.
The Board held a hearing on January 9, 2007. The Board
found by clear and convincing evidence that J.r. was a men-
tally ill, dangerous sex offender likely to reoffend and that
inpatient treatment through the Department of Health and
Human Services was the least restrictive treatment plan.
At the hearing, the State entered into evidence testimony
from Dr. Stephen Skulsky, a licensed and certified clinical psy-
chologist who evaluated J.r. on November 20, 2006. As part
of J.r.’s evaluation, Skulsky obtained information about J.r.’s
history. Specifically, he reviewed a letter from the Douglas
County Attorney’s office summarizing J.r.’s situation and
an incident report regarding the sexual abuse. Skulsky also
reviewed a letter from Dr. Mark Weilage, a clinical psycholo-
gist at the Department of Correctional Services.
Weilage evaluated J.r. in 2006. His letter contained the
results of a “Static-99” measure, a test customarily used in
commitment proceedings to assist clinicians in forming an
opinion as to the level of risk that an offender will reoffend.
J.r. scored a zero, the lowest score on the Static-99 measure,
demonstrating a low risk for reoffending. Weilage opined,
however, that the Static-99 measure may underestimate J.r.’s
risk for reoffending. Weilage further noted that the treatment
staff still had concerns about J.r.’s unmet treatment needs.
Nevertheless, it was Weilage’s opinion that there was insuffi-
cient evidence in J.r.’s file to indicate that he would meet the
criteria of a dangerous sex offender.
J.r. asserted that previous evaluations had been conducted,
but such evaluations were not included in the record. Skulsky
did not consider these other evaluations because he was not
366 	277 NeBrASkA repOrTS

aware of them. Skulsky indicated that he had also evaluated
J.r. in 2000, but that he did not use that evaluation because of
an issue regarding payment. Skulsky’s previous evaluation was
also not introduced into evidence.
In addition to the documents already listed, Skulsky con-
ducted an in-person evaluation of J.r. and administered vari-
ous personality tests, including the “Minnesota Multi-phasic
personality Inventory-Form 2”; the rorschach, or inkblot, test;
the “Thematic Apperception” test; projective drawings; and
an “Incomplete Sentences Blank.” Skulsky noted that J.r.’s
history included emotional, physical, and sexual abuse by his
stepfather, substance abuse, and inappropriate sexual behaviors
for which he was incarcerated. J.r. and Skulsky also discussed
the 18 months of sex offender treatment J.r. received in prison.
Skulsky testified that J.r. wanted treatment and that J.r. was
disappointed that he did not have the opportunity to complete
treatment while in prison. J.r. indicated he was willing to
obtain treatment after being released from prison.
According to Skulsky, the test results revealed that J.r.
is egocentric and irresponsible. The tests also revealed that
J.r. is an “arousal seeker” and has problems controlling his
emotions and his sexual urges. Skulsky diagnosed J.r., to a
reasonable degree of psychological certainty, with (1) dysthy-
mic disorder, (2) personality disorder “NOS,” (3) cannabis or
marijuana dependence, and (4) pedophilia. Skulsky explained
that despite the fact that J.r. had a “good understanding of
what had happened,” J.r. was still a pedophile. Skulsky testi-
fied that without successfully completing treatment, J.r. would
have a hard time clearly perceiving things and would be likely
to recidivate.
Skulsky recommended 6 months of involuntary, inpatient
treatment to finish the sex offender program. Skulsky con-
cluded that this was the least restrictive treatment alternative
“[b]ecause of the possible negative outcome given the danger-
ousness of his likely repeating the offense, it’s too great a risk
to run for the safety of society based on my professional opin-
ion. That’s why, the fact that he’s still dangerous.”
Based on this evidence, the Board found J.r. to be a dan-
gerous sex offender under § 83-174.01(1)(a) and committed
IN re INTereST OF J.r. 	367
Cite as 277 Neb. 362

him to secure inpatient treatment. The district court affirmed.
We granted J.r.’s petition to bypass the Nebraska Court
of Appeals.
III. ASSIGNMeNTS OF errOr
J.r. asserts, renumbered and restated, three assignments of
error. First, J.r. asserts that SOCA is unconstitutional under
the U.S. Constitution and the Nebraska Constitution, because
(1) it constitutes an impermissible ex post facto law, (2) it
violates double jeopardy, and (3) it violates equal protection.
Second, J.r. asserts that the Board erred in finding that J.r.
is a dangerous sex offender. Third, J.r. asserts that the Board
erred in finding that neither voluntary hospitalization nor other
treatment alternatives less restrictive were available as required
by § 71-1209.
IV. STANDArD OF reVIeW
[1-3] Whether a statute is constitutional is a question of law;
accordingly, we are obligated to reach a conclusion indepen-
dent of the decision reached by the court below.2 A statute is
presumed to be constitutional, and all reasonable doubts will
be resolved in favor of its constitutionality.3 All reasonable
intendments must be indulged to support the constitutional-
ity of legislative acts, including classifications adopted by
the Legislature.4
[4,5] The district court reviews the determination of a men-
tal health board de novo on the record.5 In reviewing a district
court’s judgment, we will affirm the judgment unless we find,
as a matter of law, that the judgment is not supported by clear
and convincing evidence.6
2 State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
3 Id.
4 Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43
(2003).
5 In re Interest of Kochner, 266 Neb. 114, 662 N.W.2d 195 (2003).
6 See, In re Interest of Michael U., 273 Neb. 198, 728 N.W.2d 116 (2007);
In re Interest of Kochner, supra note 5.
368 	277 NeBrASkA repOrTS

V. ANALYSIS
This is the first time we have considered constitutional chal-
lenges under SOCA. As such, we begin our analysis with a
brief overview of SOCA.
[6,7] In 2006, the Nebraska Legislature enacted SOCA.7 The
purpose of SOCA “is to provide for the court-ordered treat-
ment of sex offenders who have completed their sentences but
continue to pose a threat of harm to others.”8 SOCA provides
a separate legal standard for sex offenders, which allows dan-
gerous sex offenders to meet the standards of a mentally ill,
dangerous sex offender who would not meet the traditional
standards of mentally ill and dangerous under the Nebraska
Mental Health Commitment Act (MHCA).9
[8] Section 71-1203 provides that the definition of a dan-
gerous sex offender under SOCA is found in § 83-174.01. A
dangerous sex offender is
(a) a person who suffers from a mental illness which
makes the person likely to engage in repeat acts of sexual
violence, who has been convicted of one or more sex
offenses, and who is substantially unable to control his
or her criminal behavior or (b) a person with a personal-
ity disorder which makes the person likely to engage in
repeat acts of sexual violence, who has been convicted of
two or more sex offenses, and who is substantially unable
to control his or her criminal behavior.10
In other words, the civil commitment procedures of SOCA
apply to presently confined persons who, like J.r., have been
convicted of one or more sex offenses and are scheduled
for release.
Under SOCA, the Board must hold a hearing to determine
whether there is clear and convincing evidence that the subject
7 §§ 71-1201 through 71-1226.
8 § 71-1202.
9 Committee Statement, L.B. 1199, Judiciary Committee, 99th Leg., 2d
Sess. (Feb. 16, 2006). See Neb. rev. Stat. §§ 71-901 to 71-962 (reissue
2003 & Cum. Supp. 2008).
10 § 83-174.01(1).
IN re INTereST OF J.r. 	369
Cite as 277 Neb. 362

is a dangerous sex offender.11 But before the hearing, a law
enforcement officer who has probable cause to believe the
subject is a dangerous sex offender who is likely to reoffend
before the Board proceedings may place the subject in emer-
gency protective custody or have the subject continue his or her
custody if already in custody.12 While other “mentally ill and
dangerous” persons held in emergency protective custody are
held in “an appropriate and available medical facility”13 if there
is probable cause to conclude they are a danger while awaiting
the hearing, any mentally ill subject who has a prior convic-
tion for a sex offense, shall be admitted to a jail or correctional
facility. A mentally ill subject with a prior conviction for a sex
offense will only be held in a medical facility if a “medical or
psychiatric emergency exists for which treatment at a medical
facility is required” and, in such a case, the subject is to remain
in the medical facility only “until the medical or psychiatric
emergency has passed and it is safe to transport such person”
to the jail or correctional facility.14 All persons admitted into
emergency protective custody must be evaluated within 36
hours after admission by a mental health professional.15 The
subject must then be released pending his or her hearing before
the Board unless the mental health professional “determines, in
his or her clinical opinion, that such person is mentally ill and
dangerous or a dangerous sex offender.”16
At the hearing, the State must prove by clear and convincing
evidence that the subject is a dangerous sex offender and that
neither voluntary hospitalization nor other treatment alterna-
tives less restrictive of the subject’s liberty than inpatient or out-
patient treatment ordered by the Board are available or would
suffice to prevent the harm described in § 83-174.01(1).17
11 § 71-1208.
12 §§ 71-919(1) and 71-921(2).
13 § 71-919(2)(a).
14 § 71-919(2)(b).
15 § 71-919(4).
16 Id.
17 § 71-1209.
370 	277 NeBrASkA repOrTS

After the hearing by the Board but before the entry of the
Board’s treatment order, the subject may either be retained in
custody until the entry of the order or released from custody
under conditions set forth by the Board.18 If retained in custody,
SOCA requires the subject be retained “at an appropriate and
available medical facility, jail, or Department of Correctional
Services facility.”19
Once committed, the Board must designate a person to
prepare and oversee the confined subject’s individualized treat-
ment plan.20 Such person must submit periodic reports of the
confined subject’s progress and any modifications to the treat-
ment plan to the Board.21 If it is determined that the subject is
no longer dangerous, immediate release is mandated.22
1. ex post facto
We first address J.r.’s argument that SOCA violates the ex
post Facto Clauses of the U.S. Constitution and the Nebraska
Constitution. An ex post facto law disadvantages a defendant
by creating or enhancing penalties that did not exist when the
offense was committed.23 essentially, J.r. argues that SOCA is
unconstitutional because it is punitive in nature and retroactive
in its application. SOCA had not yet been enacted when J.r.
committed his sexual offenses for which he was incarcerated.
The State asserts that retroactive application of SOCA does not
violate the ex post Facto Clauses, because SOCA is not penal
in nature and is instead a civil regulatory scheme.
[9-11] Although J.r. challenges SOCA under both constitu-
tional provisions, we will undertake a single analysis, because
this court ordinarily construes Nebraska’s ex post facto clause
to provide no greater protections than those guaranteed by the
federal Constitution.24 Both U.S. Const. art. I, § 10, and Neb.
18 § 71-1210.
19 Id.
20 § 71-1216.
21 Id.
22 §§ 71-1209 and 71-1219.
23 Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008).
24 Slansky v. Nebraska State Patrol, 268 Neb 360, 685 N.W.2d 335 (2004).
IN re INTereST OF J.r. 	371
Cite as 277 Neb. 362

Const. art. I, § 16, provide that no ex post facto law may be
passed. A law which purports to apply to events that occurred
before the law’s enactment, and which disadvantages a defend-
ant by creating or enhancing penalties that did not exist when
the offense was committed, is an ex post facto law and will not
be endorsed by the courts.25 However, only retroactive criminal
punishment for past acts is prohibited.26 Civil disabilities and
sanctions may apply retroactively without violating the ex post
Facto Clauses.27 We conclude that SOCA does not violate the
ex post Facto Clauses.
It should be noted that other courts have held that statutes
similar to SOCA that provide for the commitment of danger-
ous sex offenders preceding or following a criminal conviction
do not violate ex post facto or double jeopardy principles.28
This is because the commitment proceedings for dangerous sex
offenders are nonpunitive and civil in nature.29
[12-14] Whether SOCA violates state and federal constitu-
tional protections against retroactive punishment is analyzed
under the U.S. Supreme Court’s two-prong “intent-effects”
test for analyzing punishment.30 Under the intent-effects test,
we first determine whether the Legislature intended a statutory
scheme to be civil. If so, that intent will be rejected only where
the challenger provides the clearest proof that the statutory
scheme is so punitive in either purpose or effect as to negate
the State’s intention.31 In analyzing whether the purpose or
25 State v. Worm, supra note 2.
26 Id. See Slansky v. Nebraska State Patrol, supra note 24.
27 See State v. Worm, supra note 2.
28 57 C.J.S. Mental Health § 289 (2007). See, Seling v. Young, 531 U.S.
250, 121 S. Ct. 727, 148 L. ed. 2d 734 (2001); In re Detention of Ewoldt,
634 N.W.2d 622 (Iowa 2001); In re Allen, 351 S.C. 153, 568 S.e.2d 354
(2002); State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995).
29 Id.
30 See State v. Worm, supra note 2. See, also, Smith v. Doe, 538 U.S. 84, 123
S. Ct. 1140, 155 L. ed. 2d 164 (2003); Kansas v. Hendricks, 521 U.S. 346,
117 S. Ct. 2072, 138 L. ed. 2d 501 (1997).
31 See State v. Worm, supra note 2. See, also, Kansas v. Hendricks, supra
note 30.
372 	277 NeBrASkA repOrTS

effect of SOCA is so punitive as to negate the Legislature’s
intent, we consider the following factors: (1) whether the sanc-
tion involves an affirmative disability or restraint; (2) whether
it has historically been regarded as punishment; (3) whether it
comes into play only on a finding of scienter; (4) whether its
operation will promote the traditional aims of punishment—
retribution and deterrence; (5) whether the behavior to which it
applies is already a crime; (6) whether an alternative purpose
to which it may rationally be connected is assignable for it; and
(7) whether it appears excessive in relation to the alternative
purpose assigned.32
recently, in Kansas v. Hendricks,33 the U.S. Supreme Court
upheld a sex offender commitment statute very similar to
SOCA against both an ex post facto and a double jeop-
ardy challenge. We conclude that the Court’s conclusion in
Hendricks is controlling. Thus, we discuss the Court’s reason-
ing in further detail.
The first question considered by the Court in Hendricks was
whether the kansas Legislature intended the Sexually Violent
predator Act (kansas Act) to impose civil sanctions. If the leg-
islature intended the kansas Act to impose civil sanctions, the
Court “ordinarily defer[s] to the legislature’s stated intent.”34
The Court explained:
Although we recognize that a “civil label is not always
dispositive,” . . . we will reject the legislature’s manifest
intent only where a party challenging the statute pro-
vides “the clearest proof” that “the statutory scheme [is]
so punitive either in purpose or effect as to negate [the
State’s] intention” to deem it “civil[.]”35
Because the kansas Act is described as a “‘civil commitment
procedure,’” and is located in the kansas probate code instead
32 See State v. Worm, supra note 2. See, also, Kansas v. Hendricks, supra
note 30; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L.
ed. 2d 644 (1963).
33 Kansas v. Hendricks, supra note 30.
34 Id., 521 U.S. at 361.
35 Id. (citations omitted).
IN re INTereST OF J.r. 	373
Cite as 277 Neb. 362

of the criminal code, the Court concluded that the legislature
intended the kansas Act to be civil in nature.36
The Court found that the kansas Act was intended to be civil
in nature. The Court went on to consider whether the defendant
provided the clearest proof that the effects of the kansas Act
were so punitive as to negate the legislature’s intention.37 The
Court concluded that the defendant failed to meet his burden
of proof.38
In so concluding, the Court first noted that the kansas
Act did not implicate either retributive or deterrent objec-
tives.39 even though the kansas Act is triggered by the com-
mission of a sexual assault, the Court found the kansas Act
was not retributive “because it does not affix culpability
for prior criminal conduct. Instead, such conduct is used
solely for evidentiary purposes, either to demonstrate that a
‘mental abnormality’ exists or to support a finding of future
dangerousness.”40
Although the kansas Act is triggered by the commission
of a sexual assault, the kansas Act does not make a criminal
conviction a prerequisite for commitment.41 rather, the kansas
Act provides that commitment proceedings may be initiated
only when a person “has been convicted of or charged with a
sexually violent offense,” and “suffers from a mental abnor-
mality or personality disorder which makes the person likely
to engage in repeat acts of sexual violence.”42 The Court con-
cluded that the absence of necessary criminal responsibility
implies that the state was not trying to impose a punishment
for past misdeeds.43 And unlike a criminal statute, the kansas
Act does not require a finding of scienter, but instead requires
36 Id. (emphasis omitted).
37 Kansas v. Hendricks, supra note 30.
38 Id.
39 Id.
40 Id., 521 U.S. at 362.
41 See kan. Stat. Ann. § 59-29a03(a) (2005).
42 See kan. Stat. Ann. § 59-29a02(a) (Cum. Supp. 2008).
43 Kansas v. Hendricks, supra note 30.
374 	277 NeBrASkA repOrTS

that the commitment determination be based on a “‘mental
abnormality’” or “‘personality disorder’”; thus, the Court con-
cluded that the absence of a finding of scienter provides further
evidence that the kansas Act is not retributive.44
In concluding that the Act did not have deterrent objec-
tives, the Court reasoned: “Those persons committed under
the [kansas] Act are, by definition, suffering from a ‘mental
abnormality’ or a ‘personality disorder’ that prevents them
from exercising adequate control over their behavior. Such
persons are therefore unlikely to be deterred by the threat
of confinement.”45
The Court in Hendricks acknowledged that the kansas Act
imposed an affirmative disability or restraint, but concluded
that an affirmative disability or restraint “‘does not inexorably
lead to the conclusion that the government has imposed punish-
ment.’”46 The Court explained:
The State may take measures to restrict the freedom of
the dangerously mentally ill. This is a legitimate nonpuni-
tive governmental objective and has been historically so
regarded. . . . The Court has, in fact, cited the confine-
ment of “mentally unstable individuals who present a
danger to the public” as one classic example of nonpuni-
tive detention. . . . If detention for the purpose of protect-
ing the community from harm necessarily constituted
punishment, then all involuntary civil commitments would
have to be considered punishment. But we have never
so held.47
The Court noted that although the kansas Legislature afforded
procedural safeguards similar to those used in a criminal
context, the kansas Act was not thereby transformed into a
criminal proceeding.48 Affording such procedural safeguards
demonstrated only that the kansas Legislature went to great
44 Id., 521 U.S. at 362.
45 Id., 521 U.S. at 362-63.
46 Id., 521 U.S. at 363.
47 Id. (citations omitted) (emphasis in original).
48 Kansas v. Hendricks, supra note 30.
IN re INTereST OF J.r. 	375
Cite as 277 Neb. 362

lengths to confine only a small class of particularly danger-
ous individuals.49
The Court found it significant that under the kansas Act,
Hendricks’ treatment occurred under the supervision of the
kansas Department of Health and Social and rehabilitative
Services and that he was not housed with the general prison
population.50 Instead, he was segregated from the general
prison population operated by individuals not employed by the
Department of Correctional Services.
Finally, the Court in Hendricks concluded:
Where the State has “disavowed any punitive intent”;
limited confinement to a small segment of particularly
dangerous individuals; provided strict procedural safe-
guards; directed that confined persons be segregated from
the general prison population and afforded the same status
as others who have been civilly committed; recommended
treatment if such is possible; and permitted immediate
release upon a showing that the individual is no longer
dangerous or mentally impaired, we cannot say that it
acted with punitive intent.51
As such, the Court held that the kansas Act was not punitive.
In the case at bar, J.r. does not dispute that the Legislature
intended SOCA to be civil in nature. He also agrees that the
kansas Act considered constitutional by the U.S. Supreme
Court in Hendricks is similar to SOCA. But J.r. argues that
SOCA has two distinguishing differences from the kansas Act
considered in Hendricks and that those differences mandate
a different conclusion about SOCA’s constitutionality. First,
J.r. notes that the kansas Act, unlike SOCA, does not require
a prior criminal conviction in order to be adjudged to be a
dangerous sex offender. Second, J.r. argues that Hendricks is
not controlling, because under SOCA, dangerous sex offend-
ers are placed back into the general prison population prior to
the hearing before the Board. But under the kansas Act, sex
49 Id.
50 Id.
51 Id., 521 U.S. at 368-69.
376 	277 NeBrASkA repOrTS

offenders awaiting a hearing are segregated from the general
prison population. From our own analysis of SOCA, we con-
clude that such differences are immaterial.
2. legIslatIve I ntent prong
[15] First, it is clear that the Legislature intended SOCA to
be civil in nature. Whether the Legislature intended a statutory
scheme to be civil or criminal is primarily a matter of statu-
tory construction.52 However, we must also look at the statute’s
structure and design.53 The explicit purpose of SOCA is to
protect the public from sex offenders who continue to pose a
threat of harm to others.54 Further, the Legislature stated in its
committee statement that the purpose of SOCA was to create
a separate legal standard for sex offenders under MHCA. And
when looking at the structure and design, SOCA mirrors the
procedures for civil commitments under MHCA, affords the
same protections as MHCA, and is located in the civil code.
Clearly, the Legislature intended SOCA to be a civil regula-
tory scheme.
3. effects of soca
Second, J.r. has failed to meet his burden of providing the
clearest proof that the effect of SOCA is so punitive in either
purpose or effect as to negate the Legislature’s intent.55
Although civil commitment under SOCA does impose an
affirmative restraint, restricting the freedom of dangerous men-
tally ill persons is a legitimate governmental purpose that has
been historically regarded as nonpunitive.56 Thus, such restraint
or affirmative disability may be applied to protect the public.
In the case of emergency protective custody pending the hear-
ing before the Board, convicted sex offenders are only held
upon a showing of probable cause that custody is necessary
and upon a prompt evaluation by a mental health professional
52 State v. Worm, supra note 2.
53 Id.
54 § 71-1203.
55 See State v. Worm, supra note 2.
56 See Kansas v. Hendricks, supra note 30.
IN re INTereST OF J.r. 	377
Cite as 277 Neb. 362

concluding that the subject is a dangerous sex offender. The
fact that SOCA imposes an affirmative disability or restraint
does not negate the Legislature’s clear intent that SOCA be
civil in nature.
Further, the fact that a finding of scienter is not required for
civil commitment under SOCA provides evidence that SOCA is
indeed a civil regulatory scheme. The determination of whether
one is a dangerous sex offender who must be confined is made
based on a mental abnormality or personality disorder and not
on a finding of criminal intent.
Additionally, we are persuaded that SOCA was not meant to
serve as a deterrent. persons committed under SOCA are suf-
fering from a mental disorder or personality disorder that pre-
vents them from exercising control over their actions. As such,
SOCA focuses on treating dangerous sex offenders and not on
imposing a punishment. This is further evidenced by the fact
that SOCA is modeled after and mirrors MHCA.
even though SOCA’s application is limited to convicted
sex offenders, SOCA does not impose liability or punish-
ment for criminal conduct. Instead, like the kansas Act in
Hendricks, prior convictions are used for evidentiary purposes.
Specifically, requiring that the subject be convicted of a sex
offense provides evidence of the subject’s mental condition and
helps predict future behavior.57
Additionally, SOCA is not excessive in relation to its assigned
nonpunitive purpose, which is to protect the public and pro-
vide treatment to dangerous sex offenders who are likely to
reoffend.58 There is clearly a rational relation between the
restriction on dangerous sex offenders’ liberty and the statute’s
purpose of protecting the public by providing treatment for
dangerous sex offenders in order to reduce the likelihood they
will engage in such acts in the future. Moreover, SOCA not
only requires that sex offenders receive a commitment hearing
before the Board, but it also imposes a high standard of proof
upon the State. To subject a dangerous sex offender to inpatient
57 See, Welvaert v. Nebraska State Patrol, 268 Neb. 400, 683 N.W.2d 357
(2004); State v. Worm, supra note 2.
58 § 71-1202.
378 	277 NeBrASkA repOrTS

treatment, the State must prove by clear and convincing evi-
dence that involuntary treatment is the least restrictive alterna-
tive.59 Further, SOCA allows for the committed sex offender to
request periodic review hearings by the Board to seek from the
Board an order of discharge or a change in treatment.60 These
facts provide dispositive proof that SOCA is civil and not
criminal in nature.61 We determine that civil confinement under
SOCA is reasonably related to the danger of recidivism and
consistent with the regulatory objective, protecting the public
from dangerous sex offenders.
Finally, we reject J.r.’s argument that the kansas Act in
Hendricks is meaningfully different from SOCA because SOCA,
unlike the kansas Act, requires a prior criminal conviction for
a determination that a person is a dangerous sex offender.62
Under SOCA, persons charged with a sexual offense, but not
convicted, do not fall within the definition of a dangerous sex
offender. While most statutes do not limit the definition of a
dangerous sex offender to only those convicted of a sexual
offense, those that do have been held by other courts not to be
punitive or unconstitutional.63 Our Legislature merely limited
SOCA’s application to a smaller group of sex offenders. A
civil commitment is not somehow transformed into a criminal
proceeding simply because the Legislature has chosen to limit
SOCA’s application to those mentally ill persons who have
actually been convicted of a sex offense.64
J.r.’s second attempt to distinguish SOCA from the kansas
Act found to be constitutional in Hendricks is also without
merit. Under SOCA, sex offenders must generally remain in
jail or a correctional facility while awaiting their hearing from
the Board. In contrast, sex offenders awaiting a mental health
59 § 71-1209.
60 § 71-1219.
61 See, Kansas v. Hendricks, supra note 30; § 83-174.01.
62 See § 59-29a03.
63 Allen v. Illinois, 478 U.S. 364, 106 S. Ct. 2988, 92 L. ed. 2d 296 (1986);
Woodard v. Mayberg, 242 F. Supp. 2d 695 (N.D. Cal. 2003); State v.
Carpenter, supra note 28.
64 See, Allen v. Illinois, supra note 63; State v. Carpenter, supra note 28.
IN re INTereST OF J.r. 	379
Cite as 277 Neb. 362

hearing under the kansas Act are placed under the supervision
of the kansas Department of Health and Social rehabilitative
Services. However, J.r. misinterprets the Court’s conclusion in
Hendricks. The Court in Hendricks found it significant that the
defendant was placed under the supervision of the department
after the hearing by the Board confirmed that the defendant
was a dangerous sex offender.65 The Court was concerned with
the conditions of the confined persons once they are actually
civilly committed. The Court did not discuss the conditions of
confinement pending the mental health hearing.
We conclude the fact that convicted sex offenders are rou-
tinely placed in custody in a jail or correctional facility while
awaiting their hearing does not override the Legislature’s clear
intent that SOCA be civil in nature.
Because J.r. failed to prove that the effects of SOCA are so
punitive in either purpose or effect to negate the Legislature’s
intention, we conclude that SOCA is not punitive and is
indeed civil. Therefore, SOCA does not violate the ex post
Facto Clauses.
4. double Jeopardy
[16,17] Next, J.r. argues that SOCA is punitive in nature
and constitutes multiple punishments for the same offense
in violation of the Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution and article I, § 12, of
the Nebraska Constitution. The Double Jeopardy Clause of
the Fifth Amendment to the U.S. Constitution protects against
three distinct abuses: (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for
the same offense.66 The protection provided by Nebraska’s
double jeopardy clause is coextensive with that provided by the
U.S. Constitution.67
In Hendricks, after finding that the kansas Act was not
punitive, the Court easily rejected the defendant’s argument
65 Kansas v. Hendricks, supra note 30.
66 State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
67 State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
380 	277 NeBrASkA repOrTS

that the kansas Act violated the Double Jeopardy Clause.68
The Court stated that “as commitment under the [kansas] Act
is not tantamount to ‘punishment,’ [the defendant’s] involun-
tary detention does not violate the Double Jeopardy Clause,
even though that confinement may follow a prison term.”69
Having already concluded in our ex post facto analysis that
SOCA constitutes a nonpunitive civil regulatory scheme, we
similarly conclude that SOCA does not violate the Double
Jeopardy 	Clause, 	because 	commitment 	under 	SOCA 	is
not punishment.
5. equal protectIon
Next, J.r. argues that because SOCA classifies a dangerous
sex offender differently than a mentally ill individual under
MHCA, SOCA violates the equal protection Clauses found in
the 14th Amendment, § 1, to the U.S. Constitution and article
I, § 3, of the Nebraska Constitution. Specifically, J.r. main-
tains that SOCA violates equal protection principles, because
it allows a dangerous sex offender to be committed following
a diagnosis of a personality disorder. He alleges that this is a
lower standard than required for commitment under MHCA,
which requires a diagnosis of a mental illness or substance
dependence.70 Section 83-174.01(1)(b) provides that a danger-
ous sex offender is a person with a personality disorder, who
has been convicted of two or more sex offenses, and is substan-
tially unable to control his or her criminal behavior. J.r. does
not meet this definition.
[18] J.r. is a sex offender as defined under § 83-174.01(1)(a).
He does not meet the definition of a dangerous sex offender
under § 83-174.01(1)(b), the subsection he alleges violates
equal protection. It is a long-standing rule that a person to
whom a statute may be constitutionally applied will not be
heard to challenge the statute on the ground that it might con-
ceivably be applied unconstitutionally to others in situations
68 Kansas v. Hendricks, supra note 30.
69 Id., 521 U.S. at 369.
70 See § 71-908.
IN re INTereST OF J.r. 	381
Cite as 277 Neb. 362

not before court.71 Because SOCA was constitutionally applied
as to J.r., he does not have standing to raise an equal protec-
tion argument based on a provision that does not apply to him.
Thus, J.r.’s argument is without merit.
J.r. also argues that SOCA violates the equal protection
Clauses, because it allows dangerous sex offenders to be held
in a jail or correctional facility while they await the hearing
before the Board—unlike MHCA, which requires that a men-
tally ill person be placed in an appropriate medical facility.
[19] Where a statute is challenged under the equal protection
Clause, the general rule is that legislation is presumed to be
valid, and the burden of establishing the unconstitutionality of
the statute is on the one attacking its validity.72
[20,21] The equal protection Clause of the 14th Amendment,
§ 1, mandates that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.”73 This clause
does not forbid classifications; it simply keeps governmental
decisionmakers from treating differently persons who are in all
relevant aspects alike.74 The initial inquiry in an equal protec-
tion analysis focuses on whether the challenger is similarly
situated to another group for the purpose of the challenged
governmental action. Absent this threshold showing, one lacks
a viable equal protection claim.75 In other words, the dissimi-
lar treatment of dissimilarly situated persons does not violate
equal protection rights.76
[22,23] In an equal protection challenge to a statute, the
level of judicial scrutiny applied to a particular classification
71 See, State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987); State v.
Greaser, 207 Neb. 668, 300 N.W.2d 197 (1981); State v. Brown, 191 Neb.
61, 213 N.W.2d 712 (1974).
72 See Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006).
73 See Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 616 N.W.2d 326
(2000).
74 Id.
75 Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003); Benitez v. Rasmussen,
261 Neb. 806, 626 N.W.2d 209 (2001).
76 Kenley v. Neth, supra note 72.
382 	277 NeBrASkA repOrTS

may be dispositive.77 Legislative classifications involving either
a suspect class or a fundamental right are analyzed with strict
scrutiny, and legislative classifications not involving a sus-
pect class or fundamental right are analyzed using rational
basis review.78
[24,25] It is undisputed that mental illness is not a suspect
class and that neither state courts nor federal courts apply
strict scrutiny to challenges similar to J.r.’s.79 As such, SOCA
will be scrutinized using rational basis review. Under this
level of scrutiny, we will uphold a classification created by
the Legislature where it has a rational means of promoting a
legitimate government interest or purpose.80 In other words, the
difference in classification need only bear some relevance to
the purpose for which the difference is made.81 Under the ratio-
nal basis test, whether an equal protection claim challenges a
statute or some other government act or decision, the burden
is upon the challenging party to eliminate any reasonably con-
ceivable state of facts that could provide a rational basis for
the classification.82
[26] Mentally ill sex offenders are different from mentally
ill persons who are not sex offenders due to the sexual nature
of their crimes.83 Sex offenders are generally more dangerous
77 State v. Senters, 270 Neb. 19, 699 N.W.2d 810 (2005).
78 See id.
79 See In re Treatment and Care of Luckabaugh, 351 S.C. 122, 568 S.e.2d
338 (2002) (citing In re Detention of Williams, 628 N.W.2d 447 (Iowa
2001); In re Detention of Samuelson, 189 Ill. 2d 548, 727 N.e.2d 228, 244
Ill. Dec. 929 (2000); Detention of Turay, 139 Wash. 2d 379, 986 p.2d 790
(1999); and Martin v. Reinstein, 195 Ariz. 293, 987 p.2d 779 (Ariz. App.
1999)).
80 See State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).
81 See State v. Simants, 213 Neb. 638, 330 N.W.2d 910 (1983).
82 Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007).
83 See, State v. Little, 199 Neb. 772, 261 N.W.2d 847 (1978); Martin v.
Reinstein, supra note 79; Westerheide v. State, 831 So. 2d 93 (Fla. 2002);
In re Detention of Garren, 620 N.W.2d 275 (Iowa 2000); In re Care &
Treatment of Hay, 263 kan. 822, 953 p.2d 666 (1998); In re Blodgett, 510
N.W.2d 910 (Minn. 1994).
IN re INTereST OF J.r. 	383
Cite as 277 Neb. 362

to others than are the mentally ill, because of the high prob-
ability of recidivism and the unique nature of their crimes.
The Legislature has defined a dangerous sex offender as one
who is substantially unable to control his or her desire or
urge to commit sex offenses.84 Dangerous sex offenders pose
a greater harm to society because of their inability to control
their behavior, which invariably results in harm to others. The
mentally ill committed under MHCA on the other hand, do
not necessarily cause harm to others with their actions.85 Sex
offenders are, therefore, not similarly situated to the mentally
ill. As such, statutes that treat them differently do not violate
equal protection.86
even assuming that mentally ill sex offenders are similarly
situated to mentally ill persons committed under MHCA,
this difference in classification is rational.87 SOCA’s purpose
is to protect the public from dangerous sex offenders who
have demonstrated their dangerous propensities by repeat-
edly committing sexual offenses. J.r. failed to eliminate any
conceivable state of facts that could provide a rational basis
for classifying dangerous sex offenders differently from the
mentally ill, because allowing dangerous sex offenders who
are presently confined to await the Board’s hearing in a jail or
correctional facility bears a rational relationship to the purpose
of SOCA.88
A similar argument was rejected by our court in State v.
Little.89 In Little, the defendant argued that Nebraska’s socio-
path laws were violative of equal protection because incurably
mentally ill, dangerous persons were confined at a regional
84 § 83-174.01.
85 § 71-908(2). See Martin v. Reinstein, supra note 79.
86 See State v. Little, supra note 83.
87 See, In re Detention of Williams, supra note 79; In re Treatment and Care
of Luckabaugh, supra note 79; In re Care and Treatment of Norton, 123
S.W.3d 170 (Mo. 2003).
88 See, In re Morrow, 616 N.W.2d 544 (Iowa 2000); Thompson, petitioner,
394 Mass. 502, 476 N.e.2d 216 (1985); Detention of Petersen, 138 Wash.
2d 70, 980 p.2d 1204 (1999).
89 State v. Little, supra note 83.
384 	277 NeBrASkA repOrTS

center but sexual sociopaths were confined to the Nebraska
penal and Correctional Complex.90 We concluded that the dif-
ference in classification was reasonable and stated: “[T]he pub-
lic health and safety required that those previously convicted
on a sex offense and deemed untreatable may be appropriately
held in the Nebraska penal and Correctional Complex rather
than in the regional center due to the fact of the prior convic-
tion of the crime.”91 A prerequisite of SOCA is a criminal
conviction for a sex offense.92 It is clearly a matter of admin-
istrative convenience for persons who are already incarcerated
to be confined in a jail or correctional facility while awaiting
their hearing. As such, we conclude that the Legislature had a
reasonable basis for classifying dangerous sex offenders differ-
ently than the mentally ill under MHCA. Accordingly, J.r.’s
argument is meritless.93
We conclude that the differences in classification between
dangerous sex offenders and other mentally ill persons promote
a legitimate state purpose and are rationally related to that
purpose, protecting the public from dangerous sex offenders.
As such, J.r.’s assignments of error involving equal protection
violations are without merit.
6. clear and convIncIng evIdence
Finally, J.r. argues that the State failed to produce sufficient
evidence that he is a dangerous sex offender; that there was a
“recent act”94; and that inpatient, involuntary treatment is the
least restrictive alternative. We disagree.
(a) Dangerous Sex Offender
[27] In order for J.r. to be considered a dangerous sex
offender, the State must prove by clear and convincing evi-
dence that J.r. is likely to engage in repeat acts of sexual vio-
lence and that he is substantially unable to control his criminal
90 Id.
91 Id. at 777-78, 261 N.W.2d at 851.
92 § 83-174.01.
93 See In re Detention of Samuelson, supra note 79.
94 Brief for appellant at 22.
IN re INTereST OF J.r. 	385
Cite as 277 Neb. 362

behavior.95 “Likely to engage in repeat acts of sexual violence
means the person’s propensity to commit sex offenses result-
ing in serious harm to others is of such a degree as to pose
a menace to the health and safety of the public.”96 Not being
able to control criminal behavior means “having serious dif-
ficulty in controlling or resisting the desire or urge to commit
sex offenses.”97
[28] The key to confinement of a mentally ill person lies
in finding that the person is dangerous and that, absent con-
finement, the mentally ill person is likely to engage in par-
ticular acts which will result in substantial harm to himself
or others.98
J.r. argues that in order for involuntary commitment under
SOCA to comply with due process, the State was required to
show that he has actually been dangerous in the recent past
by providing evidence of an overt act, attempt, or threat to do
substantial harm to himself or others. And J.r. argues that his
conviction in 2000 is insufficient to prove that he committed a
recent act that is probative of whether he will be dangerous in
the future.
[29-31] We have stated: “To comply with due process,
there must be a finding that there is a substantial likelihood
that dangerous behavior will be engaged in unless restraints
are applied.”99 In determining whether a person is dangerous,
the focus must be on the person’s condition at the time of
the commitment hearing.100 The actions and statements of the
person prior to the commitment hearing are probative of the
person’s present mental condition.101 But, for a past act to have
evidentiary value, the past act must have some foundation for
95 See § 83-174.01(1).
96 § 83-174.01(2).
97 § 83-174.01(6).
98 In re Interest of Blythman, 208 Neb. 51, 302 N.W.2d 666 (1981).
99 Id. at 57, 302 N.W.2d at 671.
100 In re Interest of Blythman, supra note 98.
101 Id.
386 	277 NeBrASkA repOrTS

a prediction of future dangerousness, thus being probative of
that issue.102
In In re Interest of Blythman,103 we considered whether a sex-
ual assault that occurred 5 years before Theodore Blythman’s
commitment hearing was a “recent act.” Since the time of the
assault, Blythman was incarcerated. Blythman argued that if
we were to conclude that the assault satisfies the recent act
requirement, then involuntary civil commitment, regardless of
how remote in time the act, threat, or violence was, would be
permitted. We rejected this argument, stating: “[S]uch a result
does not necessarily follow if it is kept in mind that any act
that is used as evidence of dangerousness must be sufficiently
probative to predict future behavior and the subject’s present
state of dangerousness.”104 We determined that Blythman’s
assault, which occurred 5 years before his commitment hear-
ing, was probative of whether he was still dangerous and
stated that “[t]his is particularly true since [Blythman] did
not have an opportunity to commit a more recent act in the
intervening years.”105 Further, we opined that the Legislature
did not intend for a sex offender to be given the opportunity
to commit a more recent act once a sufficient amount of
time has passed since the last act in order to meet the recent
act requirement.106
At the time In re Interest of Blythman was decided, SOCA
had not been enacted. Blythman was committed under MHCA.
Under MHCA, the definition of a mentally ill and dangerous
person was defined as someone who is mentally ill and poses
a substantial risk of harm to others “as manifested by evidence
of recent violent acts or threats of violence or by placing oth-
ers in reasonable fear of such harm.”107 SOCA does not include
§ 71-908 in its definition. It is unclear whether the Legislature
102 See id.
103 Id.
104 Id. at 59, 302 N.W.2d at 672.
105 Id.
106 Id.
107 § 71-908(1).
IN re INTereST OF J.r. 	387
Cite as 277 Neb. 362

intended for the recent act requirement of § 71-908 to apply
to SOCA.
Assuming without deciding that the recent act requirement
must be fulfilled for J.r. to be adjudged a dangerous sex
offender, we determine that the State satisfied such a require-
ment in this case. The State proved that J.r.’s sexual assaults
on his girlfriend’s daughter were probative to the issue of
whether he is still a danger.
Skulsky testified that J.r. is a pedophile, suffers from canna-
bis dependence and depression, and has a personality dis-
order. Skulsky also testified that J.r. has inadequate emo-
tional controls and that until successfully completing treatment,
J.r. would have a hard time controlling his sexual urges.
J.r. did not complete sex offender treatment while in prison.
Considering this evidence, we believe that J.r.’s acts of sexual
assaults on his girlfriend’s daughter are probative on the issue
of dangerousness.
J.r. asserts that the sexual assault is not probative of whether
he is still dangerous, because he could have taken “advantage
of opportunities to assault other children, [or] to further assault
his victim” before being sentenced, but instead, he sought vol-
untary therapy.108 J.r. was charged on May 8, 2000, and was
sentenced on December 15. In March 2000, J.r. had sought
professional counseling. However, J.r. sexually assaulted his
girlfriend’s daughter for a period of at least 5 years, and J.r.
never sought treatment until his victim reported the assaults.
Although J.r. did not reoffend immediately before being incar-
cerated, the fact that his sexual offenses continued for a
period of at least 5 years remains probative of whether he is
still dangerous.
J.r. also argues he cannot be characterized as a dangerous
sex offender because his Static-99 results placed him at the
lowest level to reoffend. This argument is without merit. First,
we have never concluded that the results of the Static-99 are
dispositive of whether a person is a dangerous sex offender.
And, although J.r. scored a zero on the Static-99, the record
indicates that the Static-99 may have underestimated J.r.’s
108 Brief for appellant at 23.
388 	277 NeBrASkA repOrTS

risk for reoffending, because J.r.’s treatment staff still had
concerns regarding that risk. Further, in Skulsky’s professional
opinion, despite the Static-99 results, J.r. still poses a danger
to society. As such, we conclude that J.r.’s argument is with-
out merit.
J.r. also attacks the credibility of Skulsky’s opinion, argu-
ing that Skulsky did not conduct a thorough evaluation. J.r.’s
basis for such argument is that Skulsky did not consider a pre-
vious evaluation of J.r. that Skulsky had conducted. Skulsky
explained that he did not consider this evaluation because of an
issue regarding payment.
[32] We consider the fact that the Board saw and heard
Skulsky’s testimony and observed his demeanor while testify-
ing, and give great weight to the Board’s judgment as to cred-
ibility.109 Skulsky testified that despite any prior assessments
or any issues regarding payment, he accurately evaluated
J.r. Specifically, Skulsky stated: “I wouldn’t have agreed to
[evaluate him] if I thought I’d be influenced about the current
work.” In our review, we give significant deference to the fact
the Board found Skulsky’s testimony credible. We also note
that none of the previous evaluations that J.r. complains of
were introduced into evidence. presumably, J.r. would have
introduced into evidence any previous evaluations if they
were favorable. We conclude that Skulsky’s evaluation was
sufficient and probative of whether J.r. remains a danger
to society.
(b) Least restrictive Alternative
Next, we consider J.r.’s assertion that inpatient, involuntary
treatment was not the least restrictive alternative. He argues
that the State failed to produce sufficient evidence that he is
still dangerous and that the State failed to provide any evi-
dence why inpatient, involuntary treatment is the least restric-
tive alternative.
J.r. relies on the fact that he has contacted treatment
facilities in anticipation of his release. However, according to
Skulsky, inpatient, involuntary treatment is the least restrictive
109 See Huffman v. Peterson, 272 Neb. 62, 718 N.W.2d 522 (2006).
IN re INTereST OF J.r. 	389
Cite as 277 Neb. 362

alternative, because if J.r. were to be released into society
without further treatment, the threat of harm would be great.
Skulsky stated that “given the personality diagnoses of emo-
tional disturbance, pedophilia, combined with the lack of
successful treatment of sex offender issues indicates [sic] that
[J.r.] still needs treatment on an inpatient locked unit.”
Moreover, the record does not indicate that J.r. has ever
successfully completed treatment in the past, including the vol-
untary treatment he sought before sentencing. Considering that
the Board had the opportunity to observe Skulsky’s testimony,
we cannot conclude that the Board’s finding that inpatient,
involuntary treatment is the least restrictive alternative was not
supported by clear and convincing evidence.
The order of the district court affirming the Board’s action is
supported by clear and convincing evidence that J.r. is a dan-
gerous sex offender and that neither voluntary hospitalization
nor other treatment alternatives less restrictive of J.r.’s liberty
are available.
VI. CONCLUSION
We conclude that SOCA is civil in nature and that, therefore,
it may be applied retroactively without violating principles of
double jeopardy or ex post facto. Additionally, we conclude
that SOCA does not violate the equal protection Clauses, as
dangerous sex offenders are not similarly situated to other non-
sex-related offenders and because the Legislature had a rational
and legitimate basis for treating sex offenders differently than
the mentally ill. Finally, we conclude that the Board’s finding
that J.r. is a dangerous sex offender was supported by clear
and convincing evidence. As such, we affirm the judgment of
the district court.
affIrMed.
390 	277 NeBrASkA repOrTS