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 H©bert, and Ann Zimmerman, in their official capacities, Defendants.
Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General's Office, counsel for Defendants.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK, District Judge.
This matter is before the Court on Defendants' request for certification of appeal pursuant to 28 U.S.C. § 1292(b) or, alternatively, Federal Rule of Civil Procedure 54(b). ( See Doc. No. 973.) For the reasons set forth below, the Court denies Defendants' request.
Defendants filed the present request for certification in response to the Court's Findings of Fact, Conclusions of Law, and Order (Doc. No. 966), filed on June 17, 2015, in which the Court granted Plaintiffs' request for declaratory relief with respect to Counts I and II of their Third Amended Complaint (Doc. No. 635). Defendants seek review of at least the following issues: (1) the Court's determination that the strict scrutiny standard of review applies to Plaintiffs' claims; (2) the Court's determination that strict scrutiny requires a continuum of less restrictive alternatives for civilly committed individuals confined at the Minnesota Sex Offender Program ("MSOP"); and (3) the Court's determination that civilly committed individuals are being unconstitutionally detained at the MSOP. ( See Doc. No. 973.) Defendants now ask the Court to certify its June 17, 2015 Order for interlocutory appeal under 28 U.S.C. § 1292(b) or, alternatively, under Rule 54(b).
I. Certification Under 28 U.S.C. § 1292(b)
Defendants first request that the Court certify its June 17, 2015 Order under 28 U.S.C. § 1292(b). 28 U.S.C. § 1292(b) provides that:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b). "Section 1292(b) establishes three criteria for certification: the district court must be of the opinion that (1) the order involves a controlling question of law; (2) there is substantial ground for difference of opinion; and (3) certification will materially advance the ultimate termination of the litigation." White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994) (internal quotations omitted). The party requesting certification "bears the heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted." Id. at 376. "Permission to allow interlocutory appeals should be granted sparingly and with discrimination" due to the additional burdens that such appeals place on both the courts and the litigants. Union Cnty. v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) (quoting White, 43 F.3d at 376).
Although the parties do not dispute that the first statutory requirement is satisfied because the Court's June 17, 2015 Order involves a "controlling question of law, " the parties strongly dispute whether the remaining criteria for certification are satisfied. Defendants argue that with respect to the second statutory requirement, "there is a substantial ground for difference of opinion" on the "novel legal theory that strict scrutiny applies in these circumstances, or that it is permissible to hold in a § 1983 action that state civil committees are being unconstitutionally detained." (Doc. No. 973 at 6.) Plaintiffs, on the other hand, argue that "Defendants have failed to demonstrate that there is a substantial ground for difference of opinion' on a controlling question of law." (Doc. No. 975 at 4.) Plaintiffs assert that the cases that Defendant relies upon to support its argument are distinguishable and are not controlling in this matter because those cases did not address whether an entire system of civil commitment is constitutional, as is the case here. ( See id. at 4-5.) In addition, Plaintiffs assert that "[i]t is simply wrong to suggest that the Supreme Court has not clearly found that civil commitment constitutes a significant deprivation of liberty and thus affects a fundamental liberty right." ( See id. at 5 (internal citations omitted).) Plaintiffs further argue that "the lack of cases addressing due process concerns in sex offender civil commitment systems simply does not create a substantial ground for difference of opinion.'" ( Id. at 5-6 (citations omitted).)
The Court finds that certification under 28 U.S.C. § 1292(b) is improper because the requisite statutory certification requirements have not been met. Even assuming that the first criterion for certification is satisfied, as both parties appear to agree, the Court finds that the second criterion cannot be satisfied because there is no substantial ground for difference of opinion. See White, 43 F.3d at 378. "[A] dearth of cases' does not constitute substantial ground for difference of opinion.'" Union Cnty., 525 F.3d at 647 (quoting White, 43 F.3d at 378). As Plaintiffs correctly observe, the fact that other courts have yet to address the systemic issues identified above with respect to the civil commitment of sex offenders does not mean that the applicable legal standard is unclear. ( See Doc. No. 972 at 10.) Contrary to their assertions, Defendants have presented no case directly addressing the constitutionality of the civil commitment statutory scheme in the context of a systemic challenge; the constitutionality of the statute's failure to require regular risk assessments to determine whether committed individuals continue to meet the criteria for commitment; or constitutionality of the statute's failure to require the MSOP to initiate the petitioning process when it is aware that a committed individual likely meets the statutory discharge criteria. Moreover, the United States Supreme Court and Minnesota Supreme Court cases referenced in the Court's June 17, 2015 Order clearly establish that freedom from physical restraint, including in a civil commitment context, is a fundamental right, and therefore, strict scrutiny applies. ( See Doc. No. 966 at 53-54 (citing Foucha v. United States, 504 U.S. 71, 80 (1992); Jones v. United States, 463 U.S. 354, 361 (1983); Cooper v. Oklahoma, 517 U.S. 348, 368-69 (1996); Reno v. Flores, 507 U.S. 292, 316 (1993) (O'Connor, J., concurring); Vitek v. Jones, 445 U.S. 480, 492 (1980); In re Blodgett, 510 N.W.2d 910, 914 (Minn. ...