In re Poole, A18-0814

• Decision Date: 29 October 2018
• Docket Number: A18-0814
• Citation: 921 N.W.2d 62
• Parties: In the MATTER OF the CIVIL COMMITMENT OF: James Robinson POOLE.
• Court: Minnesota Court of Appeals

921 N.W.2d 62

In the MATTER OF the CIVIL COMMITMENT OF: James Robinson POOLE.

A18-0814

Court of Appeals of Minnesota.

Filed October 29, 2018

Review Denied January 15, 2019

Lori Swanson, Attorney General, James H. Clark III, Brandon Boese, Assistant Attorneys General, St. Paul, Minnesota (for respondent Commissioner of Human Services)

Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent Traverse County)

Jennifer L. Thon, Steven D. Winkler, Warren J. Maas, Jones Law Office, Mankato, Minnesota (for appellant James Poole)

Considered and decided by Cleary, Chief Judge; Connolly, Judge; and Rodenberg, Judge.

CLEARY, Chief Judge

In 2000, when James Robinson Poole finished serving a prison sentence for convictions for criminal sexual conduct, he was indeterminately committed to the Minnesota Sex Offender Program (MSOP) as a sexually dangerous person (SDP) and as a sexual psychopathic personality (SPP). In 2017, Poole petitioned for a complete discharge from MSOP. At a first-phase hearing on Poole's petition, the Judicial Appeal Panel admitted the testimony and report of its own examiner. At the end of the first-phase hearing, the commissioner of human services moved the panel, under Minn. R. Civ. P. 41.02(b), to dismiss Poole's petition, asserting that Poole failed to make a prima facie case for discharge. The panel granted the commissioner's motion. Poole appeals, arguing that (a) at the first-phase hearing, the panel should not have admitted, and should not have considered, the testimony and report of the panel's examiner; (b) the panel should not have granted the county's motion to dismiss Poole's petition; and (c) the discharge criteria in Minn. Stat. § 253D.31 (2016) deprive committed persons of due process of law because they allow continued commitment when a person's confinement no longer bears a reasonable relationship to the reason for the commitment. We conclude that the panel erred when it considered the testimony and report of its examiner. We affirm the panel, however, because, even if the testimony and report of the panel's examiner are disregarded, Poole still did not make a prima facie case for discharge, and because Minn. Stat. § 253D.31 does not unconstitutionally allow continued commitment when a person's confinement no longer bears a reasonable relationship to the reason for the commitment because of alleged unamenability to treatment.

FACTS

Poole was licensed to practice medicine in 1968. As a result of misconduct in his examinations of certain female patients, a jury convicted Poole of 16 counts of third- and fourth-degree criminal sexual conduct. The conduct for which Poole was convicted did not include penile penetration of any victim. State v. Poole , 499 N.W.2d 31, 32-33 (Minn. 1993) (describing Poole's offenses). After Poole served his sentence, he was indeterminately committed to MSOP. In re Poole , No. C4-00-85, 2000 WL 781381, at *1 (Minn. App. June 20, 2000). In 2009, Poole stopped participating in sex offender treatment in MSOP. In January 2017, Poole petitioned the Special Review Board (SRB) for a transfer to community preparation services, a provisional discharge from MSOP, or a full discharge from MSOP. After a hearing, the SRB issued its findings of fact and recommendation to deny Poole's requests. Poole petitioned for rehearing and reconsideration, and a first-phase hearing on that petition occurred before the appeal panel.

At the start of the first-phase hearing, Poole withdrew all of his requests for relief except his request for a full discharge from MSOP. Additionally, in support of his petition, Poole submitted, and the panel admitted, the report of Dr. Jennifer Jones, among other exhibits. Poole then testified in support of his discharge, asserting that his MSOP polygraph results showed that he was nondeceptive¹ , that he would be age 80 in September 2018, and that he has poor balance and uses a cane. Poole also testified that surgery for prostatecancer five years earlier left him with "a leaky bladder, bladder incontinence, and ... completely sexually impotent[,]" and that his cancer is currently in remission. Poole noted that he has no history of substance abuse, and asserted that, if released, he could live on his Social Security income with family or friends in Montana or California or Sweden. He further asserted that he has no intention of attempting to regain his license to practice medicine, that he needs neither sex offender treatment nor treatment for a lack of concern for other people, that he "no longer [has] any interest in sex whatsoever," and that he "absolutely [will] not" engage in sex offender treatment if he is discharged. Poole admitted that he was removed from sex offender treatment in prison, has not engaged in sex offender treatment outside of prison and MSOP, and has never completed a sex offender treatment program. Further, he denied "most" of the allegations that he committed uncharged sex offenses against extended family members, and noted that he has been incarcerated or in MSOP since 1991.

The panel then called the examiner appointed by the panel, Dr. Mary Kenning. During her testimony, her report was admitted. Both her testimony and her report were unfavorable to Poole's requested discharge. At the conclusion of her testimony, the commissioner moved to dismiss Poole's petition for discharge, and, after hearing arguments on the point, the panel took the matter under advisement.

The panel's resulting March 26, 2018 order recited the procedural and factual history of the matter and detailed the testimony and report of the panel's examiner, as well as the report of Dr. Jones. After describing Poole's testimony, the order analyzed the legal standard for discharge, and ruled that "[Poole] has failed to establish a prima facie case that he is entitled to a discharge from his civil commitment." The panel granted the commissioner's motion to dismiss Poole's petition for discharge, and denied Poole's petition for discharge. Poole appeals.

ISSUES

I. Did the appeal panel err, at the first-phase hearing, by calling its own examiner and admitting her report into evidence?

II. Did the appeal panel err in ruling that Poole failed to make a prima facie case that he is not a danger to the public?

III. Do the criteria for discharge from MSOP unconstitutionally permit confinement after the confinement lacks a reasonable relationship to the purpose of the commitment?

ANALYSIS

Matters involving SDPs and SPPs are governed by Minnesota Statutes chapter 253D. Under that chapter, a committed person

seeking discharge or provisional discharge bears the burden of going forward with the evidence, which means presenting a prima facie case with competent evidence to show that the person is entitled to the requested relief. If the petitioning party has met this burden, the party opposing discharge or provisional discharge bears the burden of proof by clear and convincing evidence that the discharge or provisional discharge should be denied.

Minn. Stat. § 253D.28, subd. 2(d) (2016). Regarding petitions for full or partial discharge from MSOP, the supreme court has stated:

When appearing before [the panel], the committed person bears the burden of going forward with the evidence, which means presenting a prima facie case with competent evidence to show that the person is entitled to the requested relief. We have recently described that burden as a burden of production, which requires the committed person to come forward with sufficient, competent evidence that, if proven, would entitle the petitioner to relief. The proceeding in which a committed person produces evidence is commonly referred to as a first-phase hearing. If the committed person satisfies his burden of production, then the party opposing the petition bears the burden of proof by clear and convincing evidence that the discharge or provisional discharge should be denied. The proceeding in which the opposing party attempts to prove that the discharge petition should be denied is commonly referred to as a second-phase hearing.

Coker v. Jesson , 831 N.W.2d 483, 485-86 (Minn. 2013) (quotations, citations, and footnote omitted); see Minn. Stat. § 253D.28, subd. 2(d) (2016) (addressing discharge).

I.

Poole asserts that, at a first-phase hearing, the panel should not have called its examiner as a witness, and should not have admitted her report into evidence. The Commitment and Treatment Act Rules (the Special Rules) "apply in proceedings" under chapter 253D, and "supersede any other body of rules otherwise applicable (e.g., the Rules of Civil Procedure for the District Courts, Probate Court Rules, etc.) in conflict with these Special Rules." Minn. Spec. R. Commit. & Treat. Act 1(a), (b) (respectively). Construction of rules, as well as the construction of chapter 253D and associated caselaw, is addressed de novo. Coker , 831 N.W.2d at 489 (rules); In re Civil Commitment of Lonergan , 811 N.W.2d 635, 639 (Minn. 2012) (statutes); In re Guardianship of Welch , 686 N.W.2d 54, 56 (Minn. App. 2004) (caselaw).

Special Rule 15, titled "Evidence," states: "The court may admit all relevant, reliable evidence, including but not limited to the respondent's medical records, without requiring foundation witnesses." Similarly, Minn. Stat. § 253D.28 (2016), titled "JUDICIAL APPEAL PANEL," allows the panel to appoint examiners, and states that the panel "shall hear and receive all relevant testimony and evidence." Minn. Stat. § 253D.28, subd. 2(c). The question at a first-phase hearing is whether the committed person produces competent evidence which, if proven, would entitle the committed person to the relief sought. Coker , 831 N.W.2d at 485-86. The testimony and reports of a witness called by the panel are not evidence produced by the committed person. Therefore, the panel should not have called its own examiner and should not have admitted her report at Poole's first-phase hearing.

II.

To obtain a discharge from MSOP, a person...