United States District Court, D. Minnesota
Kevin Scott Karsjens, David Leroy Gamble, Jr., Kevin John DeVillion, Peter Gerard Lonergan, James Matthew Noyer, Sr., James John Rud, James Allen Barber, Craig Allen Bolte, Dennis Richard Steiner, Kaine Joseph Braun, Christopher John Thuringer, Kenny S. Daywitt, Bradley Wayne Foster, Brian K. Hausfeld, and all others similarly situated, Plaintiffs,
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Jannine Hé bert, and Ann Zimmerman, in their individual and official capacities, Defendants
Daniel E. Gustafson, Esq., David A. Goodwin, Esq., Karla M. Gluek, Esq., and Raina Borrelli, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Ricardo Figueroa, Scott H. Ikeda, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General's Office, counsel for Defendants.
Eric S. Janus, Esq., William Mitchell College of Law; and Teresa J. Nelson, Esq., ACLU of Minnesota, counsel for Amici Curiae.
John L. Kirwin, Esq., Assistant Hennepin County Attorney, Hennepin County Attorney's Office, counsel for Amicus Curiae.
DONOVAN W. FRANK, United States District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on its June 2, 2014 Order to Show Cause (Doc. No. 468), Plaintiffs' Motion for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment (Doc. No. 469), and Plaintiffs' Motion to Immediately Transfer R.B. to an Appropriate Treatment Facility (Doc. No. 478). For the reasons set forth below, the Court denies Plaintiffs' motions without prejudice but expedites this class action case for trial.
Plaintiffs filed this class action case on behalf of all individuals civilly committed to the Minnesota Sex Offender Program (" MSOP" ), raising several challenges to MSOP and the Minnesota statutes governing civil commitment and treatment of sex
offenders, Chapter 253B (recodified as Chapter 253D). ( See Doc. No. 1, Compl.; Doc. No. 301, Am. Compl.) On July 24, 2012, the Court certified a class in this matter pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, consisting of " [a]ll patients currently civilly committed" to MSOP (together, " Plaintiffs" or the " class members" ). (Doc. No. 203 at 11.)
The Court's Order to Show Cause and Plaintiffs' two motions referenced above were prompted by the work of the court-appointed Rule 706 experts, specifically two interim reports produced by the Rule 706 experts relating to class members Eric Terhaar and Rhonda Bailey.
As the record reflects, after various motions were filed in this matter, on October 25, 2013, the Court " acknowledge[d] the need for experts in this case in order to fully and properly litigate the claims at issue," granted Plaintiffs' request to the extent it sought the appointment of expert witnesses pursuant to Rule 706 of the Federal Rules of Evidence, and requested nominations for such experts from the parties. (Doc. No. 354 at 3, 4.) On December 6, 2013, the Court appointed four experts pursuant to Rule 706. (Doc. No. 393 at ¶ 2.) These four experts were jointly nominated by the parties. ( Id. ) The Court's December 6, 2013 Order generally described the duties of the experts and stated that the Court expected " the experts to confer as soon as possible and to suggest a methodology, areas of concentration, and division of labor, together with an expedited timetable for submission of their findings to the Court." ( Id. ¶ ¶ 4, 9.) Thereafter, the parties submitted their respective proposals with regard to the work of the experts, and on January 22, 2014, the Court met with the experts. ( See Doc. No. 421.) On February 5, 2014, the Court received the experts' proposed plan of action, in which the experts proposed, among other things, to conduct initial chart reviews to " get an understanding of what is happening in the program so that it may be evaluated, not to make comments about an individual resident's risk or treatment progress." (Doc. No. 422.)
At that time, a motion to dismiss and motions by Plaintiffs requesting various forms of injunctive and declaratory relief were pending. On February 19, 2014, the Court ruled on the motions, and in doing so, pointed out that this case involves alleged systemic problems with MSOP and the systematic application of commitment statutes to the class members, and further stated that specific discovery may enlighten the Court on the issues before it. (Doc. No. 427 at 20 (" If, with the benefit of discovery (including reports by the Court-appointed experts), Plaintiffs are able to demonstrate that the commitment statutes are systematically applied in such a way as to indefinitely commit individual class members who are no longer dangerous, or that MSOP is administered as a punitive system despite its statutory treatment purpose, Plaintiffs will likely prove up their claims." ).) The evidence before the Court included both the March 2011 Evaluation Report on the Civil Commitment of Sex Offenders by the Office of the Legislative Auditor for the State of Minnesota (" OLA" ) (Office of the Legislative Auditor, State of Minnesota, Evaluation Report: Civil Commitment of Sex Offenders (2011) (" OLA Report" ), available at http://www.auditor.leg.state.mn.us/ped/pedrep/ ccso.pdf), and the Sex Offender Civil Commitment Advisory Task Force's (the " Task Force" ) final recommendations dated December 2, 2013. (Sex Offender Commitment Advisory Task Force, Final Report (2013) (" Task Force Report" ), available at https://edocs.dhs.state.mn. us/lfserver/Public/DHS-6641B-ENG.) Both reports indicate there may be systemic problems with MSOP and its application
of the commitment statutes. For example, the Task Force Report states that " [t]here is broad consensus that the current system of civil commitment of sex offenders in Minnesota captures too many people and keeps many of them too long" (Task Force Report at 1), and makes several recommendations. ( See Task Force Report at 5-16.) The Task Force also states that " [u]nder current law all offenders committed to MSOP are presumptively placed in the highest level of security. The result is that some offenders, while meeting the criteria for commitment, may be needlessly confined in the most secure facilities, when both public safety and the need for effective treatment might be better served in a less restrictive environment" ; and " [t]he need for continued commitment and the propriety of placement must be reviewed on a regular basis, without demand or request by the committed individual." ( Id. at 3.) The summary of the findings of the OLA includes that: " Minnesota's population of civilly committed sex offenders has grown significantly in the last decade and is the highest in the nation on a per capita basis" (OLA Report at x); " [t]he costs of civil commitment in MSOP are high relative to incarceration and other alternatives"  ( id. ); " [t]here is considerable variation in commitment practices, particularly among prosecutors" ( id. at xi); " Minnesota lacks reasonable alternatives to commitment at a high security facility" ( id. ); " [w]ith the large influx of commitments since 2003, MSOP has struggled to provide adequate treatment and maintain a therapeutic environment, particularly at its Moose Lake facility" ( id. at xii); and " [n]o civilly committed sex offender has ever been discharged from MSOP" ( id. ). The OLA Report also notes that " Minnesota has a release standard for offenders who are civilly committed that, in practice, is stricter than other states. MSOP does not support any discharges without completion of the treatment program. Most states explicitly allow for discharges if an offender no longer meets the commitment criteria." (OLA Report at xii.)
The Court therefore contemplated that the work of the Court-appointed experts would help the Court determine whether there are such systemic problems. (Doc. No. 427 at 20.) Accordingly, the Court more specifically set forth what the Rule 706 experts' work should include--at a minimum--so that information relevant to such determination would be available to the Court. ( Id. at 70-74.) For example, the Court ordered that the experts' work would include:
ii. Reviewing the current treatment program at MSOP and its implementation to determine whether the program meets professional standards of care and treatment for sex offenders and issuing recommendations as to any changes that should be made to the treatment program; and
iii. Reviewing current MSOP policies and practices with regard to the conditions of confinement to determine whether they satisfy the balance between safety concerns and a therapeutic environment and making recommendations for any changes that should be made to the conditions of confinement at both the Moose Lake and St. Peter facilit[ies].
iv. The experts shall also report to the Court on the following: (a) the current professional standards for the treatment of civilly committed sex offenders and the extent to which MSOP's
program design reflects those standards; (b) how other civil commitment programs have reintegrated civilly committed sex offenders into the community, with particular attention to community relations; and (c) how other states, if any, are providing treatment and management of ...