In re Interest of S.J.

collateral order doctrine. We conclude that this claim is with-
out merit.
CONCLUSION
We conclude that because the district court has not entered a
final order, we lack appellate jurisdiction over this appeal. We
therefore dismiss.
A ppeAl dismissed.
G errArd, J., not participating in the decision.
WriGht, J., not participating.
in re interest of s.J., AlleGed to be
A dAnGerous sex offender .
s.J., AppellAnt, v. mentAl heAlth boArd of the
fourth JudiciAl district, Appellee .
810 N.W.2d 720
Filed March 16, 2012. 	No. S-11-314.
1. 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.
2. Constitutional Law: Due Process. The determination of whether procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
3. Judgments: Appeal and Error. On questions of law, a reviewing court has an
obligation to reach its own conclusions independent of those reached by the
lower courts.
4. 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.
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 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.
6. Due Process: Mental Health: Convicted Sex Offender. A liberty interest is
implicated if a subject is committed to inpatient treatment pursuant to the Sex
Offender Commitment Act.
IN re INTereST OF S.J. 	507
Cite as 283 Neb. 507
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

7. Due Process: Notice. Due process does not guarantee an individual any particu-
lar form of state procedure. Instead, the requirements of due process are satisfied
if a person has reasonable notice and an opportunity to be heard appropriate
to the nature of the proceeding and the character of the rights which might be
affected by it.
8. Due Process: Administrative Law: Recusal: Presumptions: Proof. Due process
requires a neutral, or unbiased, adjudicatory decisionmaker. Such decisionmakers
serve with a presumption of honesty and integrity. A party seeking to disqualify
an adjudicator because of bias or prejudice bears the heavy burden of overcoming
the presumption of impartiality.
Appeal from the District Court for Douglas County: GAry b.
rAndAll, Judge. Affirmed.
Thomas C. riley, Douglas County Public Defender, and Zoë
r. Wade for appellant.
Jeffrey 	J. 	Lux, 	Deputy 	Douglas 	County 	Attorney, 	for
appellee.
heAvicAn, 	c.J., 	connolly, 	stephAn, 	mccormAck , 	and
miller-lermAn, JJ., and sievers and cAssel , Judges.
miller-lermAn, J.
NATUre OF CASe
S.J. appeals the order of the district court for Douglas
County which affirmed the order of the Mental Health Board
of the Fourth Judicial District (the Board) committing S.J. as a
dangerous sex offender. The court rejected S.J.’s arguments that
his due process rights had been violated and concluded that
the State had met its burden to prove by clear and convincing
evidence that S.J. was a dangerous sex offender and that con-
tinued inpatient treatment was the least restrictive alternative
available. We affirm.
STATeMeNT OF FACTS
The Douglas County Attorney filed a petition with the Board
alleging that S.J. was a dangerous sex offender within the mean-
ing of Nebraska’s Sex Offender Commitment Act (SOCA),
Neb. rev. Stat. § 71-1201 et seq. (reissue 2009). Following an
initial hearing held April 30, 2009, the Board found that S.J.
had been convicted of two sex offenses, that he suffered from
the mental illness pedophilia, that such illness made him likely
508 	283 NeBrASkA rePOrTS

to engage in repeat acts of sexual violence, and that he was
substantially unable to control his criminal behavior. The Board
therefore concluded that S.J. was a dangerous sex offender. But
the Board rejected the inpatient treatment plan recommended
by the State because it found that inpatient treatment was
too restrictive and not warranted by the evidence. The Board
ordered the county attorney and the public defender to develop
an outpatient treatment plan; the Board indicated it would seek
assistance from the Department of Health and Human Services
(DHHS) in developing an outpatient program.
At a July 2, 2009, review hearing, it was reported that
despite extensive efforts, an appropriate outpatient program
had not been found due to problems with cost and availability
of providers. The Board therefore ordered S.J. to be condition-
ally placed at the Norfolk regional Center (NrC) for inpatient
treatment but ordered DHHS to undertake all necessary efforts
to place S.J. in a suitable outpatient program. On October 29, it
was reported to the Board that S.J. was still being held in inpa-
tient treatment at NrC. The Board ordered DHHS to continue
searching for suitable outpatient treatment and ordered that if
an appropriate outpatient plan was not arranged by December
28, the commitment would be dismissed.
On December 10, 2009, NrC staff who had evaluated S.J.
filed a report with the Board in which they collectively opined
that S.J. presented a high risk of recidivism and that the least
restrictive treatment for him was continued inpatient treat-
ment at NrC. The Board therefore set a hearing for January
12, 2010.
At the January 12, 2010, hearing, a psychologist from NrC
testified that during testing at NrC, several additional risk
factors came to light that had not been noted in previous test-
ing of S.J. and that such additional factors raised S.J.’s risk to
reoffend to high compared to the medium risk at which he had
previously been assessed. The psychologist testified that such
factors warranted therapeutic attention and opined that the least
restrictive alternative for S.J. which would provide appropri-
ate therapy was inpatient treatment. A psychiatrist from NrC
also testified at the hearing and concurred in the opinion that
inpatient treatment was the least restrictive alternative for S.J.
IN re INTereST OF S.J. 	509
Cite as 283 Neb. 507

The psychiatrist testified that S.J.’s high risk to reoffend “really
waives” the option of outpatient treatment and that an inpatient
alternative was required for effective treatment. Following the
hearing, the Board concluded that inpatient treatment at NrC
was the least restrictive alternative presently “available” and
inpatient commitment was ordered.
S.J. appealed the Board’s January 12, 2010, order to the
district court for Douglas County. He asserted that his proce-
dural due process rights, his substantive due process rights, and
his right to an adjudication before an impartial decisionmaker
had been violated. He also asserted that the Board erred when
it found by clear and convincing evidence that he was a dan-
gerous sex offender and that inpatient treatment was the least
restrictive treatment alternative.
In its order filed March 20, 2011, as an initial matter, the
district court noted its awareness of § 71-1209(6) of SOCA
which provides that inpatient treatment should “only be con-
sidered as a treatment alternative of last resort.” The court
reviewed the procedures and protections required under SOCA
and concluded that such procedures “provide subjects with
a meaningful opportunity to be heard regarding their com-
mitment as a dangerous sex offender, both prior to and after
that determination is made.” The district court concluded that
SOCA provided adequate procedural due process in connection
with commitment decisions thereunder.
As to the instant case, the court noted that S.J. made no
claim that he had been denied any of the procedures required
by SOCA. The court specifically rejected S.J.’s argument
that SOCA violates procedural due process because it treats
inpatient and outpatient treatment as equivalent alternatives,
thus allowing commitment to either program based on what
is available. The court disagreed with S.J.’s reading of SOCA
and found that SOCA did not authorize the Board to arbitrarily
order treatment solely on the basis of availability but instead
required the Board to consider all treatment alternatives and
order the appropriate available treatment that imposed the
least restraint on liberty. The court also rejected S.J.’s argu-
ment that SOCA does not provide procedural due process
because the State elects to make only the most restrictive level
510 	283 NeBrASkA rePOrTS

of treatment available. The court found that SOCA’s provision
that the Board order the least restrictive treatment alternative
did not mean that the State must make less restrictive alterna-
tives available or pay for such alternatives and that such provi-
sion was not a denial of due process.
With regard to the least restrictive treatment alternative, the
district court distinguished In re Interest of O.S., 277 Neb. 577,
763 N.W.2d 723 (2009), in which this court reversed the district
court’s affirmance of a commitment order because the State
presented no evidence regarding alternative treatment options.
In contrast to In re Interest of O.S., the court found that in the
instant case, “the Board had an abundance of evidence before it
regarding the various treatment alternatives offered in commu-
nities throughout Nebraska, as well as the programs available
through DHHS.”
The court concluded that no substantive due process vio-
lation occurred, because the infringement on S.J.’s liberty
was narrowly tailored to serve a compelling state interest in
rehabilitating S.J. and protecting the community. The court
found that continued inpatient treatment at NrC was the
least restrictive treatment alternative available. The court noted
that although the Board initially ordered outpatient treatment,
additional risk factors came to light during therapy which
indicated that inpatient treatment was necessary. Upon a de
novo review of the record, the court found, based on evidence
which included opinions of mental health professionals, that
inpatient treatment was the least restrictive alternative avail-
able for the appropriate treatment of S.J. The court concluded,
therefore, that the infringement of S.J.’s liberty interest was
narrowly tailored.
The court next concluded that SOCA complied with the
constitutional requirement of an impartial decisionmaker. The
court rejected S.J.’s argument that SOCA was unconstitutional
because it provided for commitment decisions to be made by
the Board rather than by a court. The court reasoned that the
Board could be impartial even if it was not a court and noted
that S.J. made no allegation that the Board was biased. The
court further noted that SOCA provided “generous procedures
for judicial review of the Board’s decisions.”
IN re INTereST OF S.J. 	511
Cite as 283 Neb. 507

The court finally found that the record contained clear
and convincing evidence to support the Board’s finding that
S.J. was a dangerous sex offender. The court interpreted the
definition of “[d]angerous sex offender” in Neb. rev. Stat.
§ 83-174.01 (reissue 2008), which included references to a
subject’s being “likely to engage in repeat acts of sexual vio-
lence” and “substantially unable to control his or her criminal
behavior,” to mean that an individual’s propensity to commit
sex offenses “coupled with an inability or unwillingness to
control that propensity” would justify civil commitment. The
court concluded that the record contained clear and convincing
evidence that S.J. was both “‘likely to engage in repeat acts
of sexual violence’” and “‘substantially unable to control his
criminal behavior’” and that the Board’s finding that S.J. was a
dangerous sex offender was not erroneous.
Based on the evidence and the opinions of mental health
professionals, the court found that the record contained clear
and convincing evidence to support the Board’s determination
that inpatient treatment at NrC was the least restrictive treat-
ment alternative available.
Having rejected S.J.’s assignments of error, the court affirmed
the Board’s commitment order.
S.J. appeals.
ASSIGNMeNTS OF errOr
As framed by S.J., he claims that the district court erred
when it concluded that (1) his substantive due process rights
were not violated when the Board ordered him to an inpatient
treatment program after it had initially determined that outpa-
tient treatment was appropriate, (2) SOCA did not violate pro-
cedural due process when it permitted commitment to a treat-
ment program that was more restrictive than necessary based
solely on availability, (3) SOCA did not violate procedural due
process when it allowed commitment by a Board that contained
only one legally trained member, (4) there was clear and con-
vincing evidence that S.J. was substantially unable to control
his criminal behavior, and (5) there was clear and convincing
evidence that inpatient treatment was the least restrictive avail-
able alternative.
512 	283 NeBrASkA rePOrTS

STANDArDS OF reVIeW
[1] The district court reviews the determination of a mental
health board de novo on the record. In re Interest of S.C., ante
p. 294, 810 N.W.2d 699 (2012). 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 sup-
port the judgment. Id.
[2,3] The determination of whether procedures afforded an
individual comport with constitutional requirements for pro-
cedural due process presents a question of law. State v. Hotz,
281 Neb. 260, 795 N.W.2d 645 (2011). On questions of law, a
reviewing court has an obligation to reach its own conclusions
independent of those reached by the lower courts. Id.
ANALYSIS
Supplemental Transcript Should Not Be Considered on
Appeal Because Evidence Contained Therein Was Not
Before the Board and the District Court When
They Made the Decisions Being Appealed.
We note first that the Board filed a supplemental transcript
in this court containing materials that the Douglas County
Attorney submitted to the Board after the Board entered the
January 12, 2010, order from which the appeal to the district
court was taken. S.J. filed with this court a motion to strike the
supplemental transcript in which he asserts that none of these
filings “appear in the record from the hearings concluded on
January 12, 2010, from which this appeal was taken.” Before
this appeal was moved to this court’s docket on a petition to
bypass, the Nebraska Court of Appeals overruled the motion
but reserved ruling on whether the materials were properly
before the appellate court. We now rule that they are not.
We note that the materials in question were not provided to
the Board prior to its decision and therefore were not consid-
ered by the Board when it reached its decision of January 12,
2010, from which the appeal to the district court was taken. We
further note that the materials in question were not admitted
in the appeal to the district court and that the district court did
not reference such materials in its order affirming the Board’s
commitment order.
IN re INTereST OF S.J. 	513
Cite as 283 Neb. 507

The district court considered S.J.’s appeal de novo on the
record. See In re Interest of S.C., supra. We recently distin-
guished between an appeal conducted as a “trial de novo” and
an “appeal de novo on the record” in Doe v. Board of Regents,
ante p. 303, 317, 809 N.W.2d 263, 274 (2012), in which
we stated:
“‘When an appeal is conducted as a “trial de novo,” as
opposed to a “trial de novo on the record,” it means liter-
ally a new hearing and not merely new findings of fact
based upon a previous record. A trial de novo is con-
ducted as though the earlier trial had not been held in the
first place, and evidence is taken anew as such evidence is
available at the time of the trial on appeal.’”
(Quoting Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009,
759 N.W.2d 464 (2009).) The district court’s review of the
propriety of the Board’s decision of January 12, 2010, was
properly limited to consideration of the previous record made
before the Board prior to the Board’s decision. Consideration
of materials that found their way into the Board’s files after the
Board’s decision are not properly considered by a district court
in its de novo review on the record of a mental health board
appeal such as the instant case, nor are such materials proper
for our consideration of the district court’s ruling.
We therefore conclude that the materials in the supplemen-
tal transcript are not properly before us on appeal, and we
will not consider those materials in our review of the district
court’s determinations.
Clear and Convincing Evidence Supported
Finding That S.J. Was Substantially
Unable to Control His Behavior.
We first consider S.J.’s assignments of error regarding the
sufficiency of evidence to support the district court’s findings;
we note that our resolution of these assignments of error makes
consideration of certain other assignments of error unneces-
sary. S.J. first asserts that the district court erred when it found
that there was clear and convincing evidence that S.J. was sub-
stantially unable to control his criminal behavior. We affirm the
court’s ruling.
514 	283 NeBrASkA rePOrTS

We note that before committing a person under SOCA, the
Board must find “clear and convincing evidence that the subject
is a dangerous sex offender.” § 71-1208. See, also, § 71-1209.
We have observed that “Section 71-1203(1) of SOCA incor-
porates the definition of ‘[d]angerous sex offender’ found in
§ 83-174.01(1) . . . .” In re Interest of D.H., 281 Neb. 554,
558, 797 N.W.2d 263, 267 (2011). “Dangerous sex offender” is
defined in § 83-174.01(1) to include a person who (1) suffers
from a mental illness which makes the person likely to engage
in repeat acts of sexual violence, (2) has been convicted of one
or more sex offenses, and (3) is substantially unable to control
his or her criminal behavior. S.J. does not dispute the findings
with regard to the first two requirements but asserts that the
evidence failed to establish that he was substantially unable to
control his criminal behavior.
S.J. notes that the definition of “dangerous sex offender”
requires distinct findings that a mental illness makes the per-
son likely to engage in repeat acts of sexual violence and that
the person is substantially unable to control his or her criminal
behavior. S.J. argues that because the two are distinct require-
ments, they must mean something different, and that “substan-
tially unable to control his or her criminal behavior” cannot
mean that the person is merely “likely to engage in repeat acts
of sexual violence.” See § 83-174.01. S.J. posits that “substan-
tially unable to control his or her criminal behavior” distin-
guishes between ordinary recidivists who are merely likely to
engage in repeat acts and those who cannot control their desire
to commit sexually violent acts.
We note that the two requirements are distinguished from
one another in § 83-174.01, which, in subsection (2), defines
“likely to engage in repeat acts of sexual violence” to refer
to a person’s propensity, whereas subsection (6) provides that
“[s]ubstantially unable to control his or her criminal behavior
means having serious difficulty in controlling or resisting the
desire or urge to commit sex offenses.” The first refers to a per-
son’s propensity, while the second refers to a person’s ability
to control that propensity. Both requirements were established
in the record, and we, therefore, reject S.J.’s contention that the
second component was not established by the evidence.
IN re INTereST OF S.J. 	515
Cite as 283 Neb. 507

The Board in its April 30, 2009, order and the district court
in its order affirming the commitment noted the testimony of
a clinical psychologist, which testimony supported the finding
that S.J. was a dangerous sex offender. The clinical psycholo-
gist testified that she believed that S.J. was substantially unable
to control his criminal behavior. In this regard, she noted that
even after he was subjected to legal sanctions for his first
offense, S.J. committed a subsequent offense. She further noted
that S.J. committed two offenses in homes where other adults
were present and that in one instance, he returned the same
night to sexually assault the victim a second time. She testified
that S.J. had not exhibited behavioral controls and that he had
not received treatment to develop such controls. Such testimony
supports a finding that S.J. had “serious difficulty in control-
ling or resisting the desire or urge to commit sex offenses” and
that he is substantially unable to control his criminal behavior.
See § 83-174.01(6).
On appeal, S.J. points to other portions of the clinical psy-
chologist’s testimony and contends that such testimony under-
mines her opinion regarding his ability to control his behavior.
However, the district court considered that the Board saw and
heard the clinical psychologist’s testimony and observed her
demeanor and the court gave weight to the Board’s judgment
regarding her credibility. We also give great weight to the
Board’s judgment as to credibility, see In re Interest of J.R.,
277 Neb. 362, 762 N.W.2d 305 (2009), and we therefore agree
with the district court’s determination that there was clear and
convincing evidence to support the finding that S.J. was sub-
stantially unable to control his criminal behavior. We reject this
assignment of error.
Clear and Convincing Evidence Supported
Finding That Inpatient Treatment Was
the Least Restrictive Alternative.
S.J. next claims that the district court erred when it found
that there was clear and convincing evidence before the Board
that inpatient treatment was the least restrictive alternative. We
reject this assignment of error.
S.J. asserts that the Board originally determined that out-
patient treatment was appropriate and that the Board ordered
516 	283 NeBrASkA rePOrTS

the more restrictive inpatient treatment only because it was the
only treatment available and outpatient treatment was not avail-
able. This assertion is contrary to the evidence.
In the April 30, 2009, order, the Board concluded that inpa-
tient treatment was too restrictive and that outpatient treatment
was appropriate, and in the July 2 order, the Board ordered S.J.
to be conditionally placed at NrC until an appropriate outpa-
tient treatment program could be identified. However, by the
time of the issuance of the January 12, 2010, order from which
the appeal was taken, NrC staff had examined S.J. on an inpa-
tient basis and determined that inpatient treatment was required
based on additional risk factors that had come to light and
that had not been noted in previous evaluations. Therefore, at
the time the Board ordered inpatient treatment on January 12,
there was clear and convincing evidence that inpatient rather
than outpatient treatment was appropriate. Because outpatient
treatment was not appropriate, it was not a viable alternative,
and inpatient treatment was the least restrictive alternative.
Although the Board had earlier expressed frustration at the
limited treatment options available, the Board did not order
inpatient treatment on January 12 merely because there was no
less restrictive alternative available.
S.J. also argues that the evidence failed to establish that
inpatient treatment was the least restrictive alternative, because
the NrC staff who testified that inpatient treatment was appro-
priate testified that they did not have knowledge of other treat-
ment programs. S.J. cites In re Interest of O.S., 277 Neb. 577,
763 N.W.2d 723 (2009), in which this court reversed the affirm-
ance of a commitment order because the State presented no
evidence regarding alternative treatment options. By contrast,
in this case, although the NrC staff did not have knowledge
of other alternatives, the State presented evidence regard-
ing treatment alternatives through other sources. The district
court stated that “the Board had an abundance of evidence
before it regarding the various treatment alternatives offered
in communities throughout Nebraska, as well as the programs
available through DHHS.” Based on the evidence noted, we
conclude that the record contained clear and convincing evi-
dence that inpatient treatment at NrC was the least restrictive
IN re INTereST OF S.J. 	517
Cite as 283 Neb. 507

alternative and that the Board and the district court did not err
in so finding.
We Need Not Consider Certain of
S.J.’s Due Process Claims
With Regard to SOCA.
S.J. assigns error to the district court’s rejection of certain
due process challenges he made regarding the application of
SOCA in his case. Two of his challenges were (1) that his
substantive due process rights were violated when the Board
ordered him to an inpatient treatment program after it had ear-
lier determined that outpatient treatment was appropriate and
(2) that SOCA violates procedural due process in that it per-
mits commitment to a treatment program that is more restric-
tive than necessary based solely on availability. These chal-
lenges are based on S.J.’s assertion that the Board ordered S.J.
to an inpatient treatment despite concluding that a less restric-
tive outpatient treatment was the appropriate treatment and that
SOCA permitted the Board to order S.J. to treatment that was
more restrictive than necessary based solely on the fact that
less restrictive treatment was not available. These assertions are
not supported by the facts or the law and arguments based on
these faulty assertions are without merit.
We do not analyze these due process issues because they
are not supported by the record in this case. As we concluded
above, there was clear and convincing evidence to support
the district court’s determination that inpatient treatment as
ordered by the Board was the appropriate treatment option for
S.J. Although the Board initially determined that outpatient
treatment was indicated, by the time of the January 12, 2010,
order, the Board concluded based on the evidence then before
it, that inpatient treatment was the appropriate treatment and
that outpatient treatment would not meet S.J.’s needs. The
choice of inpatient treatment was based on what was appropri-
ate for S.J., and the Board did not order S.J. to inpatient treat-
ment because no appropriate less restrictive treatment option
was available.
S.J.’s first two due process challenges were premised on the
faulty basis that the Board ordered S.J. to a more restrictive
518 	283 NeBrASkA rePOrTS

than necessary treatment option based solely on availability.
As to the first challenge asserting in part that the Board actu-
ally determined a less restrictive treatment was warranted, the
basis for this claim is inaccurate, and we reject this assignment
of error. Further, we need not consider whether there would
be a due process violation if in fact S.J. had been ordered into
treatment that was more restrictive than necessary based solely
on availability.
As to the second due process challenge involving SOCA’s
provisions, we note that contrary to S.J.’s assertion that SOCA
invites the Board to commit an offender to a more restric-
tive alternative than is necessary, SOCA instead provides in
§ 71-1209(6) that a “treatment order by the mental health board
under this section shall represent the appropriate available
treatment alternative that imposes the least possible restraint
upon the liberty of the subject” and that “[i]npatient hospi-
talization or custody shall only be considered as a treatment
alternative of last resort.” While the statute refers to “available”
treatment, it also makes clear that the treatment ordered must
be “appropriate” and must impose the least possible restraint
and that inpatient treatment is to be considered a treatment
alternative of last resort. Contrary to S.J.’s claim, SOCA does
not invite placement based solely on availability, and in any
event, as applied to this case, placement was not ordered based
solely on availability.
SOCA’s Provision Regarding the Composition
of the Board Is Consistent With
Due Process Requirements.
S.J. also claims that the district court erred when it con-
cluded that SOCA’s provision allowing commitment by a
Board that contained only one legally trained member did not
violate procedural due process. S.J. was committed by the
Board, whose composition was consistent with the require-
ments of SOCA, and therefore this due process challenge,
unlike the two just discussed, is properly presented on the
facts of this case. However, we reject S.J.’s argument that
the statutory composition of the Board violated his due proc-
ess rights.
IN re INTereST OF S.J. 	519
Cite as 283 Neb. 507

Pursuant to Neb. rev. Stat. § 71-915(2) (Supp. 2011),
each mental health board shall consist of an attorney
licensed to practice law in this state and any two of the
following but not more than one from each category: A
physician, a psychologist, a psychiatric nurse, a licensed
clinical social worker or a licensed independent clinical
social worker, a licensed independent mental health prac-
titioner who is not a social worker, or a layperson with
a demonstrated interest in mental health and substance
dependency issues.
Under § 71-915(3), “[a]ny action taken at any mental health
board hearing shall be by majority vote.”
S.J. argues that the statutory composition of the Board vio-
lates due process requirements in a commitment determination.
S.J. contends that such determination should be made by a
court and asserts that statutes in other states related to place-
ment decisions require a court determination. He further argues
that the composition of the Board creates a risk of deprivation
of constitutional rights, because a majority of the Board con-
sists of members who are not legally trained and the Board
order need not be unanimous.
[4,5] 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. In re
Interest of S.C., ante p. 294, 810 N.W.2d 699 (2012). A claim
that one is being deprived of a liberty interest without due
process of law is typically examined in three stages. The ques-
tion 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. Id.
[6] Our first query then is whether there is a protected lib-
erty interest at stake. Under SOCA, the Board decides whether
a subject should be committed to inpatient or outpatient treat-
ment. Clearly, a liberty interest is implicated if a subject is
520 	283 NeBrASkA rePOrTS

committed to inpatient treatment. See Vitek v. Jones, 445 U.S.
480, 100 S. Ct. 1254, 63 L. ed. 2d 552 (1980) (commitment
to mental hospital produces massive curtailment of liberty and,
in consequence, requires due process protection). Because a
protected liberty interest is at stake, appropriate due process is
required in connection with the commitment decision involving
S.J. under SOCA.
[7] 	We 	next 	consider 	what 	procedural 	protections 	are
required in connection with the commitment decision. Due
process does not guarantee an individual any particular form
of state procedure. Instead, the requirements of due process are
satisfied if a person has reasonable notice and an opportunity
to be heard appropriate to the nature of the proceeding and the
character of the rights which might be affected by it. Slansky v.
Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004).
We must therefore consider whether SOCA’s provision regard-
ing the composition of the Board meets the requirements of
due process.
[8] S.J. argues that the composition of the Board under
SOCA does not meet due process requirements, because the
decision is not made by a court but instead is made by the
Board and a majority of the members are not trained in the
law. We have not held that such decisions must be made by a
court in order to meet due process requirements. Instead, we
have stated that due process requires a neutral, or unbiased,
adjudicatory decisionmaker. In re Interest of A.M., 281 Neb.
482, 797 N.W.2d 233 (2011). Such decisionmakers serve with
a presumption of honesty and integrity. Id. A party seeking to
disqualify an adjudicator because of bias or prejudice bears
the heavy burden of overcoming the presumption of impar-
tiality. Id.
S.J. makes no convincing argument that the Board as com-
posed pursuant to SOCA would inherently be biased or preju-
diced, and we find no reason that the Board would be biased
or prejudiced because of its statutory composition. We further
reject S.J.’s argument that the Board could not properly make
a commitment decision because a majority of the members are
not trained in the law. Due process does not require that initial
decisions be made by a court or other legally trained persons.
IN re INTereST OF S.J. 	521
Cite as 283 Neb. 507

We note in this regard that although a commitment decision is
initially made by the Board, SOCA provides for judicial review
of the Board’s treatment orders. See § 71-1214. Therefore,
SOCA provides those subject to a commitment order the
opportunity to present legal arguments to a court. We conclude
that the district court did not err when it rejected S.J.’s due
process challenge.
CONCLUSION
We first note that, as determined above, the materials con-
tained in the supplemental transcript were not considered by
the Board in making its commitment decision nor properly
considered as evidence in the district court on appeal; we
therefore did not consider such materials in our review of the
district court’s decision. We conclude that the record before the
Board and properly before the district court contained clear and
convincing evidence to support the findings of the Board as
affirmed by the district court that S.J. was substantially unable
to control his criminal behavior and that inpatient treatment
was the least restrictive alternative. We reject S.J.’s due process
challenges to the proceedings before the Board under SOCA.
We therefore affirm the judgment of the district court which
affirmed the Board’s commitment order.
A ffirmed.
WriGht, J., not participating.
southWind homeoWners A ssociAtion, A corporAtion,
Appellee , v. dAvid burden And WilAi burden,
husbAnd And Wife , AppellAnts.
810 N.W.2d 714
Filed March 16, 2012. 	No. S-11-373.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Restrictive Covenants: Intent. restrictive covenants are to be construed so
as to give effect to the intentions of the parties at the time they agreed to
the covenants.
522 	283 NeBrASkA rePOrTS