Semler v. Klang
| Decision Date | 18 December 2007 |
| Docket Number | No. A06-1852.,A06-1852. |
| Parties | Raymond L. SEMLER, Appellant, v. Erick KLANG, Crow Wing County Sheriff, Respondent, Rick Koop, Chief Investigator for Crosby Police Department, et al., Respondents. |
| Court | Minnesota Court of Appeals |
Raymond L. Semler, Moose Lake, MN, pro se.
Kristy A. Saum, James R. Andreen, Erstad & Riemer, P.A., Minneapolis, MN, for respondent Erick Klang.
Jon K. Iverson, Jason M. Hiveley, Iverson Reuvers, LLC, Bloomington, MN, for respondents Rick Koop, John A. Bolduc, and Kyle Huber.
Considered and decided by TOUSSAINT, Chief Judge; LANSING, Judge; and HUSPENI, Judge.
Respondents Kyle Huber (the Staples police chief), Rick Koop (the Crosby police department chief investigator), John Bolduc (the Brainerd police chief), and Erick Klang (the Crow Wing county sheriff), acting under Minn.Stat. § 244.052 (2000) and Minn.Stat. § 244.052 (2002), notified communities about the presence of appellant Raymond Semler, a risk level II sex offender. Appellant brought this action against them, alleging that the community notifications violated his rights and constituted slander and defamation. The claims against Huber, Koop, and Bolduc were dismissed on the ground of official immunity, and the claims against Klang were dismissed on the grounds of improper service and expiration of the statute of limitations. Appellant challenges the dismissals.
Appellant Raymond Semler was born in January 1976. In 1989, he assaulted a 14-year-old girl, but no conviction resulted. In 1993, he assaulted and raped a 17-year-old girl, but again, no conviction resulted. In 1997, he was convicted of criminal sexual conduct in the fourth degree and of kidnapping after assaulting an adult woman. He was placed on probation. In July 2000, his probation was revoked and he was confined to the correctional facility at Moose Lake.
Prior to appellant's release, the end-of-confinement review committee (ECRC) categorized him as a risk level II sex offender. Appellant's risk assessment report said he "has a definite pattern of harassing females" and that "the juvenile investigations occurred but there were no charges or convictions."
Appellant was released on December 31, 2001. In January 2002, the Deerwood Police Department notified the public of appellant's release. The notice stated that appellant The Deerwood police department again provided this notice to the public in December 2002, when appellant was released after having been incarcerated following the August 2002 revocation of his probation. The Crow Wing county sheriff's department provided the same notice to the public in June 2003, when appellant was released after having been incarcerated in February 2003, following another probation revocation. The Brainerd police department provided the notice to the public when appellant changed his address in July 2003, and the Staples police department provided it when he again changed his address in August 2003.1
In November 2005, acting pro se, appellant brought this action against respondents, alleging that the community notification violated his rights and constituted slander and defamation.
The district court dismissed appellant's claims against Huber, Koop, and Bolduc after determining that they "erred in disclosing information `inconsistent with offender's conviction history'" under Minn. Stat. § 244.052 subd. 7(c) (2006), but that they were entitled to official immunity because they "did not engage in willful or malicious disclosures to injure [appellant's] reputation," and "disclosed that information, which in their discretion, allowed them to protect the public." The district court subsequently dismissed appellant's claims against Klang after determining that appellant had failed to serve Klang, and that the statute of limitations had run on all claims made by appellant against Klang. Appellant now challenges dismissal of all claims.
1. Does Minn.Stat. § 244.052, subd. 7(c) (2006), preclude official immunity for officers who disclose information about a sex offender that is not "consistent with the offender's conviction history?"
2. Does Minn.Stat. § 541.06 (2006) apply to police officers?
3. Does unacknowledged service by mail confer jurisdiction?
4. Does Minn.Stat. § 541.06 preclude an action against a sheriff if more than three years have passed since the act complained of?
The application of official immunity is a question of law, which we review de novo. Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn.2006).
Appellant was a risk level II sex offender. He alleges that Koop's offense occurred prior to December 31, 2001, and that Bolduc's and Huber's offenses occurred in July 2003 and August 2003, respectively. At these times, disclosure to the public of information on sex offenders of various risk levels was governed by Minn.Stat. § 244.052 (2000) and Minn.Stat. § 244.052 (2002).2 Understanding the relevant subdivisions in their context requires a comprehensive review of the statute.
Subdivision 1(2) defines "law enforcement agency" as "the law enforcement agency having primary jurisdiction over the location where the offender expects to reside upon release." Subdivision 2 directs the commissioner of corrections to "develop a risk assessment scale" that "specifies the risk level to which offenders with various risk assessment scores shall be assigned."
Subdivision 3(a) provides for the establishment of an "end-of-confinement review committee" at each state correctional facility. Subdivision 3(c) provides that the committee shall have access to an offender's private medical data, private and confidential court services data, private and confidential corrections data, and private criminal history data, and also that data collected and maintained by the committee may not be disclosed outside the committee. Subdivision 3(e) provides that a sex offenders whose risk assessment score indicates a low risk of reoffense shall be assigned to level I; those whose score indicates a moderate risk shall be assigned to level II, and those whose score indicates a high risk shall be assigned to level III. Subdivision 3(f) provides that, before an offender's release, the committee "shall prepare a risk assessment report3 which specifies the risk level to which the offender has been assigned and the reasons underlying the committee's risk assessment decision" and "shall give the report to the offender and to the law enforcement agency at least 60 days before an offender is released from confinement."
Subdivision 4 provides in relevant part:
(a) The law enforcement agency in the area where the sex offender resides, expects to reside, is employed, or is regularly found, shall disclose to the public any information regarding the offender contained in [the risk assessment] report . . . that is relevant and necessary to protect the public and to counteract the offender's dangerousness, consistent with the guidelines in paragraph (b). The extent of the information disclosed and the community to whom disclosure is made must relate to the level of danger posed by the offender, to the offender's pattern of offending behavior, and to the need of community members for information to enhance their individual and collective safety.
(b) The law enforcement agency shall employ the following guidelines in determining the scope of disclosure made under this subdivision:
(1) if the offender is assigned to risk level I, the agency may maintain information regarding the offender within the agency and may disclose it to other law enforcement agencies. . . .;
(2) if the offender is assigned to risk level II, the agency also may disclose the information to agencies and groups that the offender is likely to encounter for the purpose of securing those institutions and protecting individuals in their care while they are on or near the premises of the institution. . . . The agency also may disclose the information to individuals the agency believes are likely to be victimized by the offender. The agency's belief shall be based on the offender's pattern of offending or victim preference as documented in the information provided by the department of corrections or human services;
(3) if the offender is assigned to risk level III, the agency shall disclose the information to the persons and entities described in clauses (1) and (2) and to other members of the community whom the offender is likely to encounter, unless the law enforcement agency determines that public safety would be compromised by the disclosure or that a more limited disclosure is necessary to protect the identity of the victim.
Subdivision 4(c) defines those an offender is "likely to encounter" as those in, or in close proximity to, a location where the offender lives or is employed or which the offender is likely to visit on a regular basis. Subdivision 4(d) provides that a law enforcement agency or official who discloses information "shall make a good faith effort to make the notification within 14 days of receipt of a confirmed address." Subdivision 5 provides that the law enforcement agency where an offender plans to reside is to be given all relevant information concerning the offender, including information on risk factors in the offender's history and the risk level to which the offender was assigned, by the appropriate department (corrections or human services) within five days of the department's receipt of the offender's approved release plan.
Finally, subdivision 7 provides that no criminal liability will attach for either disclosing or failing to disclose information as permitted by this section, that no...
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