concurring.
[¶ 26] I concur in the majority opinion except for ¶ 22. I write separately for two reasons: to underscore the necessity of reading the constitutional requirements set forth in Kansas v. Crane, 534 U.S. 407,122 S.Ct. 867, 151 L.Ed.2d 856 (2002) into our statute and to reiterate that diagnostic tools and assessment tests do not act as substitutes for judicial review.
.[¶ 27] In order to involuntarily commit a sexually dangerous individual under our statute, there must be a finding an individual has committed some type of sexually predatory conduct and is diagnosable with some type of personality, sexual, or mental disorder that makes an individual “likely to engage in further acts of sexually predatory conduct.” N.D.C.C. § 25-03.3-01(8). We have said “likely to engage in further acts of sexually predatory conduct” means the individual’s “propensity towards sexual violence is of such a degree as to pose a threat to others.” In re G.R.H., 2006 ND 56, ¶ 16, 711 N.W.2d 587. As enunciated *617by the majority in G.R.H., at ¶ 18, our civil commitment statute must be read in light of Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). Thus, an individual must also have a “serious difficulty in controlling behavior.” Id,.; see also G.R.H., at ¶ 18 (construing civil commitment statute to avoid possible constitutional infirmity). Otherwise, civil commitment could quickly become a “ ‘mechanism for retribution or general deterrence’— functions properly those of criminal law, not civil commitment.” Crane, 534 U.S. at 412, 122 S.Ct. 867 (citing Kansas v. Hendricks, 521 U.S. 346, 372-73, 117 S.Ct. 2072,138 L.Ed.2d 501 (1997) (Kennedy, J., concurring)).
[¶ 28] Before an individual can be civilly committed as a sexually dangerous individual, there must be a showing of: (1) sexually predatory conduct; (2) some type of congenital or acquired condition manifested by a personality, sexual, or mental disorder that makes an individual “likely to engage in further acts of sexually predatory conduct” meaning the individual’s propensity towards sexual violence is of such a degree as to pose a threat to others; and (3) the individual must have a serious difficulty in controlling behavior. Because of the way petitioner has framed his issues, the Court does not address the third part of the requirement. This may give the impression our statute can be read in a constitutional vacuum. G.R.H. foreclosed such a reading. G.R.H., at ¶ 18.
[¶ 29] Also, I am concerned ¶ 22 of the majority opinion could erroneously be read to imply diagnostic tools and assessment tests used on sex offenders — such as the Static-99 or RRASOR — can act as a substitute for judicial decision making. We have previously made clear that we will not engage in a “contest over percentage points” when it comes to determining whether an individual meets the requirements for civil commitment. In re M.B.K, 2002 ND 25, ¶ 18, 639 N.W.2d 473. Instead, we require a thorough examination done by experts to make the initial recommendation of whether an individual poses a threat to society. Id. A certain test score on the RRASOR or Static-99 does not make an individual automatically committable. If we were to accept such logic, the judiciary would be without purpose. The court has the ultimate decision to determine whether the State has met its burden of producing clear and convincing evidence sufficient for commitment. A psychological test cannot act as a substitute for independent judicial review.
[¶ 30] To the extent the majority opinion is read in the proper light, I agree.
[¶ 31] CAROL RONNING KAPS-NER.