Karsjens et al v. Minnesota Department of Human Services et al
Filing
580
MEMORANDUM OPINION AND ORDER. 1. Plaintiff's Motion for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment (Doc. No. 469 ) is DENIED WITHOUT PREJUDICE; 2. Plaintiffs' Motion for the Creation of an Aftercare Plan f or E.T. Pursuant to Minn. Stat. § 253D.35 (Doc. No. 526 ) is DENIED WITHOUT PREJUDICE; 3. Plaintiffs' Amended Motion for Declaratory Judgment and to Immediately Transfer R.B. to an Appropriate Treatment Facility (Doc. No. 578 ) is DENIED WITHOUT PREJUDICE; 4. Eric Terhaar's federal habeas case (Civ. No. 14-2002 (DWF/JJK)) is STAYED; 5. Rhonda Bailey's federal habeas case (Civ. No. 14-2362 (DWF/JJK)) is STAYED; 6. The parties shall meet with the Court on August 21, 2014, as previously scheduled (see Doc. No. 566), to discuss moving the trial date in this case to a date in 2014. (Written Opinion). Signed by Judge Donovan W. Frank on 8/11/2014. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF 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,
Civil No. 11-3659 (DWF/JJK)
Plaintiffs,
MEMORANDUM
OPINION AND ORDER
v.
Lucinda Jesson, Dennis Benson, Kevin
Moser, Tom Lundquist, Nancy Johnston,
Jannine Hébert, 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.
INTRODUCTION
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.
BACKGROUND 1
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
1
The following is a summary of facts relevant to the pending motions before the
Court. A more full summary of facts underlying this class action case can be found in the
Court’s February 20, 2014 Memorandum Opinion and Order (Doc. No. 427). This Order
was dated February 19, 2014, docketed on ECF on February 20, 2014, and is hereinafter
referred to as the February 20, 2014 Order to avoid confusion.
2
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
3
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
4
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” 2 (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.)
2
According to the OLA Report, the “annual cost per resident in MSOP is $120,000,”
which is “at least three times the cost of incarcerating an inmate at a Minnesota
correctional facility.” (OLA Report at x.)
5
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 lower-functioning civilly committed
sex offenders in community settings.
(Doc. No. 427 at 71-72.) In addition, expanding on what the Rule 706 experts had
proposed, the Court asked the experts to:
[e]valuat[e] all class members[] and issu[e] reports and recommendations as
to: (a) each class member’s current level of dangerousness (current risk
assessment), including whether each class member poses a “real,
continuing, and serious danger to society”; (b) whether each class member
is actually eligible for discharge under the applicable statutory provisions or
6
otherwise no longer meets the statutory criteria for initial commitment (or
should otherwise be recommended for provisional or full discharge);
(c) whether each class member is placed in the appropriate phase of
treatment; (d) whether each class member would be a candidate for a less
restrictive facility; and (e) the specific need and parameters for less
restrictive alternative facilities,[] including the operation of such facilities[.]
(Doc. No. 427 at 70-71.) The Court explained that “independent risk assessments and
treatment recommendations for each of the class members [would] ultimately be
necessary in order for the Court to comprehensively evaluate Plaintiffs’ claims, including
whether the commitment statutes, as applied, and whether MSOP, as implemented, pass
constitutional muster.” (Doc. No. 427 at 47-48.)
The Court ordered that the experts begin their work by “[r]eviewing MSOP
treatment and screening program/process”; “[c]onducting site visits to St. Peter and
Moose Lake and interviewing patients and staff at each facility”; “[r]eviewing 20% to
25% of resident charts, with the aim of reviewing 100% of charts for those individuals in
the Assisted Living Unit, the Alternative Program Units, and the Young Adult Unit”; and
“[i]dentifying residents who are not receiving appropriate services and making
recommendations related thereto.” (Doc. No. 427 at 72.) With respect to the chart
reviews, the Court ordered the experts to prioritize their evaluations of those individuals
residing in the Young Adult Unit, the Assisted Living Unit, and the Alternative Program
Units. (Id. at 70 n.54, 72.)
Prioritizing the evaluations of these individuals, for the purpose of identifying
potential bellwether issues, was supported by both the OLA and the Task Force Reports.
The OLA Report states, for example, that:
7
• “. . . MSOP clinical management agreed that some low functioning[3] individuals
in the MSOP alternative program in St. Peter could be managed in group homes
specifically designed for low functioning sex offenders. Elderly individuals with
numerous medical problems and physical disabilities are also being committed and
sent to MSOP facilities and placed in an assisted living unit when appropriate.
Most recently, an 88-year-old was committed and sent to an MSOP facility. Some
of these individuals may be suitable for an alternative commitment setting.”
(OLA Report at 43-44.)
• “Generally in our file reviews and interviews, we found that there were concerns
that some clients with cognitive deficits and those with psychiatric issues did not
have their needs met by the program.” (Id. at 79.)
• “The lowest functioning alternative program clients may not have the cognitive
skills to complete the MSOP treatment program.” (Id. at 79.)
• “The MSOP administration separated from DHS’s State Operated Services
division in 2008, and low functioning MSOP clients who had been treated at
Special Needs Services were moved back to MSOP in the newly created
alternative program. The decision to move these clients back to MSOP was made
without executive level clinical input. The decision was made by the MSOP
executive director during a time when there was neither an executive clinical
director for the program nor a clinical director on the St. Peter campus.” (Id. at
80-81.)
• “The program has not yet developed and implemented an alternative release path
for low functioning alternative program clients.” (Id. at 82.)
• “Some low functioning alternative program clients likely do not need the same
level of security as other MSOP clients.” (Id. at 82.)
3
The Court notes that the term “low functioning” is not the Court’s term, but that
used by the Office of the Legislative Auditor and perhaps, as reported, MSOP clinical
management. The term “low functioning” is not a useful or descriptive term for any
individual. Its imprecision leaves biased impressions and feeds stereotypes about the
people who are being referenced. In the Court’s many years of personal and professional
experience working with disability issues in cases and people with various disabilities,
the Court notes that this terminology does not appear or is recognized in the professional
literature. Individuals who are not progressing through the program levels at MSOP may
be experiencing a range of conditions such as a learning disability, some type of
intellectual disability, or some co-occurring conditions.
8
• “There are clients who, due to age or disability, could likely be managed in
alternative settings to MSOP facilities.” (Id. at 88.)
• “We read some files of clients whose crimes were exclusively against other
children when they themselves were juveniles. These clients were sometimes
originally given diagnoses of pedophilia. Some clients in this situation have had
their diagnoses changed because, as adults, they do not have a persistent attraction
to children.” (Id. at 89.)
The OLA Report includes the following recommendations:
• “MSOP should reassess its existing residents to determine which residents would
be suitable for placement in an alternative setting. The plan presented to the 2012
Legislature should provide information on this reassessment, including the
rationale for determining why certain types of residents would be suitable for an
alternative commitment setting and a detailed description of the alternative
settings being proposed for various groups.” (OLA Report at 46.) The OLA noted
that “[s]ome might argue that outside experts should be used to do this assessment,
since they might be more objective in their assessments.” (Id.)
• “MSOP should develop and implement a plan for identifying when certain low
functioning alternative program clients who are not cognitively able to complete
treatment can be managed in a less restrictive setting. MSOP should petition the
Special Review Board (SRB) for transfer or provisional discharge of these clients
to an alternative setting.” (Id. at 83.)
• “MSOP should develop and implement a plan for managing transferred or
provisionally discharged low functioning alternative program clients in an
alternative setting.” (Id. at 83.)
Also, in its final recommendations, the Task Force states the following:
Civil commitment of persons whose offending behavior occurred while a
juvenile and individuals with developmental disabilities present special
issues that are not adequately addressed by current law and practices.
Special criteria and/or procedures should be developed to ensure such
persons are appropriately treated in the commitment system.
9
(Task Force Report at 3-4.) The Task Force also states that “[n]o person should be civilly
committed based solely on behavior that occurred while that person was a juvenile.” (Id.
at 4.)
In commencing their work pursuant to the Court’s February 20, 2014 Order, the
Rule 706 experts toured the MSOP facilities, began interviewing patients and staff at
each facility, and began their review of case files. After learning of Terhaar’s and
Bailey’s situations, and after reviewing Terhaar’s and Bailey’s files, the Rule 706 experts
agreed that Terhaar’s and Bailey’s cases should be brought to the Court’s attention
(consistent with the February 20, 2014 Order). 4 (See Doc. No. 427 at 72 (“The experts’
work shall begin with, but will in no way be limited to, the following: . . . iv. Identifying
residents who are not receiving appropriate services and making recommendations
related thereto.”).) After raising their concerns with respect to Terhaar and Bailey
specifically, and identifying those individuals as being in need of immediate court action,
the Rule 706 experts volunteered to draft interim written reports on Terhaar and Bailey,
explaining their findings and conclusions to the Court and respective counsel. Upon
4
The Rule 706 experts testified that they were shocked to find that Terhaar was at
MSOP and they were shocked to find Bailey’s situation with respect to her treatment and
her living conditions. Consequently, they brought these two cases to the Court’s
attention because the experts thought they needed immediate action. (Doc. No. 569
(“July 14 Tr.”) at 108, 139, 142-43.)
10
receipt, the interim reports were promptly provided simultaneously to the parties by the
Court’s Technical Adviser. 5
In their report dated May 18, 2014, the Rule 706 experts provide a summary and
discharge recommendation for Terhaar. (Doc. No. 468, Ex. 1.) The experts explain that
Terhaar has “no adult criminal history” and was 19 years old when committed to MSOP.
(Id. at 1.) According to the experts, Terhaar’s commitment to MSOP “was as a result of
behavior that he engaged in between the ages of 10 and 14.” (Id.) Terhaar’s file also
apparently makes reference to incidents that occurred while he was in juvenile placement
facilities, and for which no charges were filed against him. (See id. at 1-2.) The experts
opine that it “is likely” that Terhaar’s “history of general delinquency,” including
“fighting, running away,” and “engaging in rule violating behaviors,” contributed to his
commitment to MSOP. (Id. at 2.) In their report, the experts ultimately conclude that:
Mr. Terhaar has no adult criminal history. The sexual offending behavior
leading to his indefinite placement at MSOP occurred while he was a
juvenile only. There is good reason to believe that these sexual offenses
were influenced by his own history of sexual victimization and a lack of
understanding as to how to deal with his trauma. These and other
problematic behaviors were likely exacerbated by his ADHD status and
untreated complex trauma. Overall, there is little evidence to suggest that
Mr. Terhaar is a dangerous sexual offender who poses a significant risk to
public safety. As such, the panel unanimously agrees that Mr. Terhaar
should be unconditionally discharged from MSOP.
(Id. at 4.) The experts further identify a family member with whom Terhaar would be
welcome to live and work upon discharge. (Id.) Additionally, the experts state that
5
The report on Terhaar was received first and provided to the parties on May 30,
2014. Thereafter, the report on Bailey was received and provided to the parties on or
about June 6, 2014.
11
Terhaar “has been medication compliant since arriving at MSOP.” (Id. at 2.) They also
note that “[i]t appears that Mr. Terhaar completed treatment related to his sexual
offending history prior to placement at MSOP” and that “[i]t is unlikely that he requires
additional intervention in this regard.” (Id.)
In support of their conclusions, the experts discuss Terhaar’s pertinent history and
treatment participation at MSOP. (Id. at 2-3.) The experts also highlight risk assessment
processes for juveniles and state the following:
The literature on sexual offender risk assessment is clear that juveniles are
not just “small adults”; specialized tools and methods are required for use
with this population. Research also shows a strong effect of aging on risk
in the juvenile population, in that most sexual offending committed by
juveniles is linked more to development than to deviance, per se. Use of
actuarial methods is common amongst adult sexual offenders, but the
literature is cautionary with respect to the use of such methods with youth.
In particular, those tools that have been developed for use with juveniles
have only short-term predictive validity; there are no tools in common use
that profess to provide long-term predictive validity in juveniles.
It is also important to note that research on juvenile sexual offenders
suggests that they have low recidivism rates and that they are more similar
to other justice-involved juveniles than adult sexual offenders. In fact,
most juveniles who engage in sexually abusive behaviors do not continue to
offend sexually during adulthood (only 4.3% are arrested for a sexual
offense as an adult). This finding is most likely due to the fact that juvenile
offending behaviors are driven by different issues than those that drive
adults to commit sexual offenses (e.g., more opportunistic than predatory,
curiosity based, related to social problems, less compulsive). Moreover,
juveniles are more amenable to change than adults and, as such, those who
engage in sexually abusive behaviors during youth are more responsive to
interventions.
(Id. at 3.) 6
6
The Young Adult Unit houses twenty-four patients between the ages of eighteen
and twenty-five, “who require specialized treatment programming due to emotional
(Footnote Continued on Next Page)
12
In a report dated June 4, 2014, the Rule 706 experts provide a summary and
recommendation for transfer or provisional discharge for Rhonda Bailey, the only woman
civilly committed to MSOP. (Doc. No. 481, Gustafson Decl. ¶ 3, Ex. A.) Bailey has
been committed since 1993, and since 2008, she has been housed on the St. Peter campus
of MSOP as the only female on a unit of all male high risk sexual offenders. 7 (Id. at 1.)
As it stands, she “attends sex offender treatment and other programming and activities in
groups in which she is the only female.” (Id.)
According to the experts, Bailey’s “sexual offending is no doubt in reaction to the
severe emotional, physical, psychological, and sexual abuse she experienced as a child,
adolescent, and young adult.” (Id. at 6.) The experts explain Bailey’s “chaotic and
extremely traumatic upbringing,” including that she was physically and sexually abused
by several of her male family members beginning at the age of five or six. (Id. at 1.)
While at MSOP, the experts point out that Bailey has been consistently diagnosed with
multiple paraphilias. (Id. at 3.) She has also been “diagnosed with Intellectual Disability
(previously diagnosed as Mild Mental Retardation), . . . has a full scale IQ of 66,” and
(Footnote Continued From Previous Page)
immaturity and vulnerability.” (Doc. No. 380 at 12-13 (citing Doc. No. 385, Hébert Aff.
¶ 86).)
7
In 2008, the Department functionally separated MSOP from State Operated
Services, and as a result, thirty-three MSOP clients who had been placed at the Minnesota
Security Hospital (“MSH”) because they experience varying degrees of cognitive
impairment, including Bailey, were moved from the Special Needs Services division of
the MSH to MSOP. (Doc. No. 496, Johnston Aff. ¶¶ 2-4.)
13
“has a long history of depression dating to age seven or eight.” (Id.) The experts also
acknowledge the difficulties that Bailey presents, including that “[s]he has poor
boundaries with peers and with staff,” she has been “viewed by various staff as
‘predatory’ relative to sexual contact with ‘vulnerable’ male and female adult patients in
shared secure treatment settings,” “[s]he engages in sexualized and aggressive
interactions with her peers and staff, including sexually assaulting other adult clients by
engaging in oral sex and intercourse while at MHS and sexually grabbing or touching
peers at MSOP.” (Id. at 4.)
The experts note, however, that:
[t]here appears to be no case conceptualization in the record that recognizes
that Ms. Bailey’s years of sexual abuse and trauma may have greatly
impacted or resulted in her sexualized behavior as an adult. According to
Ms. Bailey’s report and in review of the record spanning over two decades,
she has not had the opportunity to address the years of neglect, physical,
and sexual abuse and the associated trauma she experienced as a child.
(Id. at 2.) The experts also note that “[t]hroughout her records, and in our interview,
[Bailey] reported symptoms consistent with Post Traumatic Stress Disorder (PTSD), but
only recently has this diagnosis been explored by the MSOP psychiatrist.” (Id. at 4.) In
addition, they state that “[t]here is no evidence to suggest that there has been any
consultation or incorporation of specialized sexual offender treatment for females, or
references that procedures supported by contemporary research and practice have been
implemented.” (Id. at 5.) The experts also met with then MSOP psychiatrist Dr. Beth
Johnson, who reported that Bailey was “a ‘delight’ to work with and that she believed
that she was not properly treated for her trauma.” (Id.)
14
The experts state that “[r]esearch suggests that the risk factors and protective
factors we know to be related to male sexual offenders may not be relevant to female
sexual offenders,” and opine that “the treatment program (and [Bailey’s] attendance with
male sexual offenders) is not adequately addressing her issues or criminogenic needs.”
(Id. at 5-6.) In support, the experts highlight the risk assessment differences between
men and women:
The literature on sexual offender risk assessment is clear that women are
different from their male counterparts. Research suggests that female
sexual offenders account for 2% to 5% of all sexual offenders. As a group,
male sexual offenders sexually reoffend at an average rate of approximately
15% over five to seven years of follow-up in the community (Hanson &
Morton-Bourgon, 2005). In comparison, female sexual offenders sexually
reoffend at about 2% on average, over a similar time period (Cortoni et al.,
2010). At present, there are no specialized tools or methods for use with
this population beyond measures of general psychological functioning and
risk for general criminality (e.g., LSI-R, LS-CMI). Although use of
actuarial methods is common amongst male sexual offenders, there is no
literature supporting the use of such methods with females. The
development or use of one would suffer from severe limitations/inaccuracy
given the extremely low base rates of female sexual offender recidivism.
Additionally, frameworks for sexual psychodiagnostics (e.g., paraphilias, as
defined by DSM-5) are almost entirely driven by behavioral concerns in
men.
(Id. at 7.) The experts also note that “the standard across programs, including civil
commitment programs like MSOP, is to separate men and women in the environment and
in treatment.” 8 (Id.) The experts state that:
8
The experts note that at MSOP, particularly in Phase II where Bailey is, “group
members shar[e] the details of their offending, which may trigger symptoms of
Ms. Bailey’s PTSD.” (Id.) They also note that “[t]here is no evidence that the clinical
staff at MSOP have received specialized training for working with female sexual abusers,
including the treatment approach that might be most effective.” (Id.)
15
While not entirely impossible, it is highly unlikely that a female would be
in possession of not one, but five separate paraphilias . . . , as stated in her
current diagnoses in the MSOP record. Rather, there are clearly other
possibilities regarding the etiology of Ms. Bailey’s sexual difficulties,
including, as her psychiatrist Dr. Johnson suggests, an untreated bipolar
disorder. All available empirical evidence leads to questions about whether
someone like Ms. Bailey meets criteria for civil commitment and to
concerns that the current treatment program not only fails to meet her needs,
but is iatrogenic due to her trauma history and probable PTSD.
(Id.) The experts also opine that Bailey “would greatly benefit from trauma-specific and
gender-specific assessment and treatment designed to address her history of sexual
victimization and the losses she has experienced . . . , in addition to opportunities for
gender sensitive socialization,” and that “[s]he may benefit from EMDR and/or
Dialectical Behavior Therapy (DBT), as specific interventions for addressing PTSD or
other trauma symptoms and emotion regulation and self-injurious behavior, respectively.”
(Id. at 6.) While they agree that Bailey “remains at high risk for future sexually
inappropriate conduct,” and that “the risk she poses continues to require management and
supervision,” they have “grave concerns . . . regarding the means by which Ms. Bailey’s
clinical presentation and risk are currently being addressed and managed.” (Id.)
Ultimately, the Rule 706 experts conclude that “Ms. Bailey’s current housing and
treatment scenario is unprecedented in contemporary sexual offender treatment and
management; even more so in regard to sexual offender civil commitment.” (Id. at 7.)
They have “exceptionally grave concerns that Ms. Bailey is being housed and treated in a
16
facility built for men and populated by men.” 9 (Id.) They, as a unanimous group, opine
that “if appropriate treatment was provided in a non-all-male setting, and she was
correctly medicated, Ms. Bailey may be able to be managed in a less secure setting.” (Id.
at 6.) The experts opine that she “is quite inappropriately placed at the MSOP St. Peter
site,” and they “believe strongly that she should be relocated to a facility where she can
receive care and treatment that is sensitive to both her gender and her clinical
presentation.” (Id. at 8.) In addition, they opine that “[c]ontinued placement at MSOP is
iatrogenic to Ms. Bailey, in that this placement likely exacerbates, rather than ameliorates,
the issues that influence her inappropriate sexual behavior.” (Id.) They unanimously
recommend that Bailey be transferred or provisionally discharged from MSOP “to a
supervised treatment setting that can meet her special needs for treatment (e.g., sexual
offending, personal victimization, trauma, mental health maintenance) that is gender
responsive, trauma informed, and that provides for socialization opportunities and
relationship development with other women.” (Id. at 1.) They also recommend that “it
would be ideal if the alternate setting could provide gender-specific sexual offender
treatment either individually or in group, but not with male sexual offenders. (Id.)
In light of the interim report with respect to Terhaar, as well as the Court’s prior
order on Defendants’ motion to dismiss and Plaintiffs’ requests for injunctive and
declaratory relief (Doc. No. 427), on June 2, 2014, the Court ordered Defendants to show
9
The experts note that the Standard Minimum Rules for the Treatment of Prisoners
(SMR) of the United Nations, to which the United States is a signatory, state that women
should be detained separate from men. (Id. at 8.)
17
cause why Terhaar’s continued confinement is not unconstitutional and why Terhaar
should not be immediately and unconditionally discharged from MSOP, as unanimously
recommended by the Rule 706 experts. (Doc. No. 468.) On June 4, 2014, Plaintiffs filed
a Motion for Declaratory Judgment and to Immediately Discharge E.T. from Civil
Commitment. (Doc. No. 469.) Then, upon receipt of the experts’ report on Bailey,
Plaintiffs filed a Motion to Immediately Transfer R.B. to an Appropriate Treatment
Facility. (Doc. No. 478.) Plaintiffs’ counsel also filed separate habeas petitions on
behalf of Terhaar and Bailey seeking Terhaar’s immediate and unconditional discharge
from MSOP and Bailey’s immediate transfer “from MSOP to a structured, supervised
residential facility where she can begin to address her issues in a more appropriate and
clinically relevant environment[.]” (Civil No. 14-2002, Doc. No. 1; Civil No. 14-2362,
Doc. No. 1.)
At some point after receiving the Rule 706 experts’ report on Terhaar, MSOP’s
internal licensed psychologists Anne Pascucci and Lauren Herbert jointly prepared a
Sexual Violence Risk Assessment Report, which issued on June 10, 2014. (Doc. No. 486,
Johnston Aff. ¶ 7, at Ex. 2.) Pascucci and Herbert concluded that Terhaar does not meet
the statutory requirements for being unconditionally discharged from MSOP. (Id. at 21.)
Terhaar’s Treatment Team also produced a report dated June 10, 2014, which concludes
that “[p]lacement in a setting outside the secure perimeter, similar to Community
Preparation Services, that maintains adequate structure and supervision while providing
opportunities for gradual reintegration to society would be appropriate.” (Doc. No. 486,
Johnston Aff. ¶ 6, Ex. 1 at 9.)
18
After the Court’s Order to Show Cause, the Commissioner requested that
independent licensed psychologist Amanda Powers-Sawyer evaluate Terhaar and provide
an opinion on his suitability for discharge from commitment. (Doc. No. 485 at 16.)
Dr. Powers-Sawyer issued a report dated June 10, 2014, concluding that:
it is [her] professional opinion that Mr. Terhaar meets criteria for
unconditional discharge from MSOP evidenced by not meeting statutory
criteria for posing a level of dangerousness to the public with respect to
sexual matters. He is not in need of residential adult sex offender treatment
and supervision. He is capable of making an acceptable adjustment to
society. He may benefit from ongoing individual psychotherapy on an
outpatient basis to continue addressing symptoms related to posttraumatic
stress disorder.
(Doc. No. 486, Johnston Aff. ¶ 8, Ex. 3 at 12-13.)
On June 10, 2014, MSOP Executive Director Nancy Johnston petitioned for
Terhaar’s transfer to Community Preparation Service (“CPS”), a highly supervised,
unlocked facility within MSOP that is designed to provide clients in the advanced stages
of treatment the opportunity to prepare for successful reintegration into the community.
(See Doc. No. 486, Johnston Aff. ¶ 9, Ex. 4; Doc. No. 385, Hébert Aff. ¶ 44.) 10 Johnston
later testified that she petitioned the SRB in response to the Rule 706 experts’ report.
10
A hearing was held by the Special Review Board (“SRB”) on this petition on
July 2, 2014, and the SRB issued its decision on July 8, 2014, recommending to the
Minnesota Supreme Court Appeal Panel (“SCAP”) that Terhaar be immediately placed
“into a modified Community Preparation Services program adapted to his particular
needs and sufficiently monitored to provide a reasonable degree of public safety.” (Doc.
No. 559, July 14-15 Hr’g, Ex. 96.) Johnston testified that if all goes well and Terhaar is
transferred to CPS after approval from the SCAP, and that if his initial month or so of
transition goes well, that she would initiate a new petition for Terhaar requesting his
provisional discharge. (Id. at 328.) She estimated, again if all goes well, that this petition
for provisional discharge would be initiated this year, in 2014. (Id. at 329.)
19
(Doc. No. 570 (“July 15 Tr.”) at 307-08.) She explained that the petition for Terhaar was
unusual and that it was not normal for MSOP to support a petition for someone in Phase I
to be moved to CPS; in fact, this was the only request for reduction in custody of this
kind that she was aware of. (Id. at 312, 324-25.) Johnston also testified that she “do[es]
not disagree” with the Rule 706 experts’ opinion that Terhaar is a low risk to sexually
re-offend. (Id. at 336.)
On June 11, 2014, the day after Johnston petitioned for Terhaar’s transfer to CPS,
Pascucci and Herbert issued a Sexual Violence Risk Assessment Addendum, in which
they additionally opined that Terhaar does not meet the statutory requirements for a
reduction in custody to transfer to CPS, thus taking a position contrary to MSOP
Executive Director Johnson. (Doc. No. 491, Brennaman Supp. Aff. ¶ 2, Ex. A.)
The Court held a Show Cause hearing and a hearing on Plaintiffs’ motions on
June 25, 2014, wherein counsel for both sides argued their respective positions. (Doc.
No. 549.) Defendants maintained that Terhaar “is still a danger to the public, he is still in
need of inpatient treatment and supervision, and is not yet capable of making an
acceptable adjustment to open society.” (Doc. No. 485 at 1.) Therefore, they oppose
unconditional discharge for Terhaar at this time. (Id. at 2.) Defendants asked the Court
to allow the Minnesota statutory process for reduction in custody and discharge from
commitment to be followed and requested the opportunity to explore the basis of the Rule
706 experts’ report in an evidentiary hearing. (Doc. No. 485 at 3.) Consistent with the
Court’s remarks from the bench, the Court set an evidentiary hearing for July 14-15, 2014,
to allow the parties to explore the basis of the reports and affidavits filed on Terhaar and
20
Bailey and to present other evidence relating to the experts’ reports. (Doc. Nos. 516,
550.)
On July 14-15, 2014, the Court held the evidentiary hearing and it received
testimony from the Rule 706 experts and Executive Director Nancy Johnston, and
received exhibits into evidence. (Doc. Nos. 557, 558, 559.) 11
DISCUSSION
Motions Regarding Eric Terhaar
On June 4, 2014—two days after the Court ordered Defendants to show cause why
Terhaar’s continued confinement is not unconstitutional and why Terhaar should not be
immediately and unconditionally discharged from MSOP—Plaintiffs renewed their
motion for a declaratory judgment to the extent that they assert that Minn. Stat. § 253D is
unconstitutional as applied because it does not contain a requirement for any automatic
independent review of an individual’s need to be civilly committed. 12 (Doc. No. 470 at
2.) Specifically, Plaintiffs requested in their new motion an order requiring
“(1) Defendants to immediately develop, and by June 1, 2015, implement, a policy
providing for automatic and independent annual reviews of each Class member to
11
On July 2, 2014, Plaintiffs filed a Motion for the Creation of an Aftercare Plan for
E.T. Pursuant to Minn. Stat. § 253D.35 (Doc. No. 526). Although the Court had
originally intended to hear argument on July 15, 2014 on this motion, as well as on the
habeas petitions, the Court indicated from the bench that it would take up those matters at
a different time and allowed for supplemental briefing on Plaintiffs’ Motion for the
Creation of an Aftercare Plan for E.T.
12
Plaintiffs originally filed a Motion for Declaratory Judgment on November 19,
2013 (Doc. No. 360), which was denied without prejudice in the Court’s February 20,
2014 Order. (Doc. No. 427 at 70.)
21
determine the need for continued commitment, and; (2) the immediate discharge of
Mr. Terhaar from his civil commitment.” (Id. at 3.) At the hearings, however, Plaintiffs’
counsel clarified that he was only requesting a declaratory judgment at this time stating
that Terhaar’s continued detention at MSOP is unconstitutional and that he would reserve
his arguments for a broader declaratory judgment request that would affect other class
members at a later time. (July 15 Tr. at 354-56.) Plaintiffs’ counsel also indicated that he
was now only seeking a declaration of unconstitutionality and that he was not seeking an
order requiring immediate discharge of Terhaar since it was his belief that such relief
could only be granted through the habeas petition. (Id. at 354-55.) Regardless of how
Plaintiffs’ have limited their declaratory request, Defendants have opposed Plaintiffs’
motion asserting various arguments for why declaratory relief is inappropriate and have
argued that they have properly responded to the Court’s Show Cause Order. (See
generally Doc. Nos. 485, 509.)
The Declaratory Judgment Act provides in pertinent part that “[i]n a case of actual
controversy within its jurisdiction, . . . any court of the United States, upon the filing of
an appropriate pleading, may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be sought.” 28
U.S.C. § 2201(a). However, it is well-settled “that district courts possess discretion in
determining whether and when to entertain an action under the Declaratory Judgment
Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites.”
Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995); see also, e.g., Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126 (1968) (affirming that the
22
exercise of the power to grant declaratory judgments is discretionary); Brillhart v. Excess
Ins. Co., 316 U.S. 491, 494 (1942). The Supreme Court has explained that “[s]ince its
inception, the Declaratory Judgment Act has been understood to confer on federal courts
unique and substantial discretion in deciding whether to declare the rights of litigants,”
and the Court has “repeatedly characterized the Declaratory Judgment Act as an enabling
Act, which confers a discretion on the courts rather than an absolute right upon the
litigant.” Wilton, 515 U.S. at 286–87 (internal quotations omitted). “By the Declaratory
Judgment Act, Congress sought to place a remedial arrow in the district court’s quiver; it
created an opportunity, rather than a duty, to grant a new form of relief to qualifying
litigants.” Id. at 288.
Plaintiffs argue that, “[b]ased on the findings of the Rule 706 experts, who
unanimously found that Mr. Terhaar is not a dangerous sexual offender and does not pose
a significant risk to public safety, Mr. Terhaar no longer meets the constitutionally
required criteria for civil commitment and his ongoing commitment violates his
fundamental due process right to liberty.” (Doc. No. 470 at 17.) With respect to the
duration of a civil commitment, “the Constitution permits the Government . . . to confine
[an individual] to a mental institution until such time as he has regained his sanity or is no
longer a danger to himself or society.” Jones v. United States, 463 U.S. 354, 370 (1983).
Thus, as the Supreme Court held in Foucha, when a civilly committed person is no
longer dangerous, he must be released. See Foucha v. Louisiana, 504 U.S. 71, 77-78
23
(1992). 13 The continued confinement of a person who is not dangerous and in need of
further treatment renders the confinement not reasonably related to the stated purpose for
13
Discussing its previous holding in Jones, the Supreme Court stated in Foucha:
We held, however, that “(t)he committed acquittee is entitled to release
when he has recovered his sanity or is no longer dangerous,” id., at 368,
103 S. Ct., at 3052; i.e., the acquittee may be held as long as he is both
mentally ill and dangerous, but no longer. We relied on O’Connor v.
Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L.Ed.2d 396 (1975), which
held as a matter of due process that it was unconstitutional for a State to
continue to confine a harmless, mentally ill person. Even if the initial
commitment was permissible, “it could not constitutionally continue after
that basis no longer existed.” Id., at 575, 95 S. Ct., at 2493. In the
summary of our holdings in our opinion we stated that “the Constitution
permits the Government, on the basis of the insanity judgment, to confine
him to a mental institution until such time as he has regained his sanity or is
no longer a danger to himself or society.” Jones, 463 U.S., at 368, 370, 103
S. Ct., at 3052, 3053. The court below was in error in characterizing the
above language from Jones as merely an interpretation of the pertinent
statutory law in the District of Columbia and as having no constitutional
significance. In this case, Louisiana does not contend that Foucha was
mentally ill at the time of the trial court’s hearing. Thus, the basis for
holding Foucha in a psychiatric facility as an insanity acquittee has
disappeared, and the State is no longer entitled to hold him on that basis.
O’Connor, supra, 422 U.S., at 574-575, 95 S. Ct., at 2493-2494.
Foucha, 504 U.S. at 77-78 (footnote omitted).
In Minnesota, a patient cannot be completely discharged from MSOP unless “it
appears to the satisfaction of the judicial appeal panel, after hearing and recommendation
by a majority of the SRB, that the committed person is capable of making an acceptable
adjustment to open society, is no longer dangerous to the public, and is no longer in need
of inpatient treatment and supervision.” Minn. Stat. § 253D.31. The Minnesota Supreme
Court has found that the discharge provisions of the civil commitment statutes to be
constitutional, but stated that a person can only be “confined for only so long as he or she
continues both to need further inpatient treatment and supervision for his sexual disorder
and to pose a danger to the public.” Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995).
In other words, the Minnesota Supreme Court has indicated that discharge must be
granted if the individual is either no longer dangerous to the public or no longer suffers
(Footnote Continued on Next Page)
24
the commitment. See Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (citing Foucha,
504 U.S. at 80). “Even if the initial commitment was permissible,” a civil commitment
may not “constitutionally continue after that basis no longer exist[s].” Foucha, 504 U.S.
at 77 (citing O’Connor v. Donaldson, 422 U.S. 563, 565 (1975)). By that reasoning, an
individual who no longer meets the criteria for commitment should be entitled to release.
The court-appointed Rule 706 experts, who are unquestionably experienced in the
field of sex offender civil commitment and treatment and who did a complete review of
Terhaar’s treatment file, which includes risk assessments and treatment information,
unanimously agreed that it is unlikely that Terhaar requires further treatment at the
MSOP and that “there is little evidence to suggest that Mr. Terhaar is a dangerous sexual
offender who poses a significant risk to public safety.” (Doc. No. 468, Ex. 1 at 2, 4.)
Their testimony confirms the same. (July 14 Tr. at 63, 99, 179; July 15 Tr. at 198, 221,
248-50.) The experts specifically recommend that Terhaar “should be unconditionally
discharged from MSOP.” (Doc. No. 468, Ex. 1 at 4; July 14 Tr. at 63.) In addition, as
her report reflects, independent licensed psychologist Amanda Powers-Sawyer agrees
(Footnote Continued From Previous Page)
from a mental condition requiring treatment. (Id.) This is consistent with Foucha and
this Court’s comments in its February 20, 2014 Order, stating that “it is constitutionally
mandated that only individuals who constitute a ‘real, continuing, and serious danger to
society’ may continue to be civilly committed to MSOP.” (Doc. 427 at 66 (citing
Hendricks, 521 U.S. at 372).) In addition, as this Court previously stated, “If the
evidence demonstrates that MSOP systematically continues to confine individuals who
are not ‘a real, continuing, and serious danger to society,’ then such confinement will be
held unconstitutional.” (Id.)
25
with the Rule 706 experts’ conclusions. (Doc. No. 486, Johnston Aff. ¶ 8, Ex. 3.)
However, although not called to testify at the July 14-15, 2014 hearing, 14 the record does
reflect that MSOP’s internal licensed psychologists Anne Pascucci and Lauren Herbert
jointly prepared a Sexual Violence Risk Assessment Report, in which they concluded that
Terhaar does not meet the statutory requirements for being unconditionally discharged
from MSOP. (Doc. No. 486, Johnston Aff. ¶ 7, Ex. 2 at 21.) But, at the hearing, MSOP
Executive Director Johnston testified that she did not disagree with the experts who said
that Terhaar was low risk for sexual reoffending, and she petitioned for his movement to
CPS. (July 15 Tr. at 336.)
Although the evidence in the record thus far relating to Terhaar’s confinement is
quite compelling in his favor, the Court is reminded that the case pending before the
Court is a Rule 23(b)(2) class-action case in which broad-based relief on behalf of the
entire class is sought. 15 At present, liability has not yet been determined and the record
has not yet been fully developed to support a declaration of unconstitutionality as to the
14
The Court notes that Defendants were not required to call witnesses in support of
their position at the evidentiary hearing. The purpose of the hearing was for the parties to
probe the various report and affidavit signatories as to the basis for their opinions. (Doc.
No. 550 (“The evidentiary hearing scheduled for July 14 and 15, 2014, is limited in scope
to evidence relating to the opinions of all individuals, including the Rule 706 experts,
who have issued reports or filed affidavits on E.T. and R.B. in relation to the Karsjens
§ 1983 action.”).)
15
Fed. R. Civ. P. 23(b)(2) states: “A class action may be maintained if Rule 23(a) is
satisfied and if: . . . (2) the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole[.]”
26
commitment statutes’ application to the presently defined class. While a district court has
some discretion to order individual relief in a Rule 23(b)(2) class action, such individual
determinations should be “incidental to class-wide issues.” Marshall v. Kirkland, 602
F.2d 1282, 1295 (8th Cir. 1979). Usually this means that, in appropriate cases, a district
court may “conduct additional proceedings after the liability phase of the trial to
determine the scope of individual relief.” Id. at 1296 (emphasis added) (quoting Int’l
Brotherhood of Teamsters v. United States, 431 U.S. 324, 361 (1977)).
In addition, a court may render a declaratory judgment “(1) when the judgment
will serve a useful purpose in clarifying and settling the legal relations in issue, and
(2) when it will terminate and afford relief from the uncertainty, insecurity, and
controversy giving rise to the proceedings.” Alsager v. Dist. Ct. of Polk Cnty., Iowa
(Juvenile Div.), 518 F.2d 1160, 1163-64 (8th Cir. 1975) (quoting E. Borchard,
Declaratory Judgments, 299 (2d ed. 1941)). Here, issuing a declaration that Terhaar’s
confinement is unconstitutional would not afford relief to the defined class, nor would it
clarify or settle the issue of whether there are systemic problems with MSOP and its
application of the commitment statutes. 16 Under these circumstances, the issuance of the
16
Although the evidence regarding Terhaar does not settle the issue, it does provide
evidence supporting Plaintiffs’ claim that the commitment statutes, because they fail to
provide for an independent annual review of whether class members continue to meet the
statutory requirements for commitment, result in a violation of the due process rights of
those class members who continue to be committed to MSOP when they no longer meet
the commitment criteria. As the Task Force noted, the “opportunity for periodic review
of the need for continued confinement and commitment is critical to upholding civil
commitment in light of a due process challenge.” (Task Force Report at 14 (citing In re
(Footnote Continued on Next Page)
27
requested declaratory judgment would not serve the Act’s intended purpose. Further, by
granting Plaintiffs’ declaratory judgment motion with respect to Terhaar, the Court would
not be providing “a comprehensive solution of the general conflict.” Hypro, Inc. v.
Seeger-Wanner Corp., 292 F. Supp. 342, 344 (D. Minn. 1968) (stating that when
determining whether to dismiss or stay a declaratory judgment action which is potentially
cumulative of other litigation, “a court should seek to determine which of the two actions
will serve best the needs of the parties by providing a comprehensive solution of the
general conflict”); see also id. at 345 (stating that factors to be considered are “of judicial
economy, informal comity between courts, cost and convenience to the litigants, and the
possibility of vexatious conflict and overlap of multiple determinations of the same
dispute”). In other words, the Court declines to exercise its discretion to grant specific
relief to Terhaar at this time based on his individualized risk assessment because
declaring his confinement unconstitutional would not “generate common answers apt to
drive the resolution of this litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2551 (2011) (quotations omitted).
Another reason why the Court declines to enter a declaration at this time is
because it appears that an expedited petition for reduction of custody process is
underway. MSOP is supporting a petition for Terhaar’s reduction in custody to CPS. If,
(Footnote Continued From Previous Page)
Blodgett, 510 N.W.2d 910, 916 (Minn. 1994).) The ultimate resolution of this claim, of
course, will depend on a full presentation of all the evidence at the trial on the merits.
28
after Terhaar is transferred to CPS, the Executive Director files a petition supporting
Terhaar’s unconditional discharge from MSOP, presumably an adequate remedy would
be had. In other words, a determination by the SCAP approving Terhaar’s discharge
would make unnecessary a declaratory judgment as to the constitutionality of Terhaar’s
confinement. 17 In addition, Plaintiffs’ counsel has indicated that he may be initiating a
state habeas action on behalf of Terhaar as well. “The existence of another adequate
remedy does not preclude a declaratory judgment that is otherwise appropriate.” Fed. R.
Civ. P. 57. However, “a court, ‘in the exercise of the discretion that it always has in
determining whether to give a declaratory judgment, may properly refuse declaratory
relief if the alternative remedy is better or more effective.’” Angora Enters., Inc. v.
17
The Court notes that the Executive Director of MSOP testified that she, if all goes
well with Terhaar’s transition to CPS, would start the petitioning process for Terhaar to
be provisionally discharged in 2014, not unconditionally discharged. Everyone,
including Defendants, Plaintiffs, the Rule 706 experts, and the Court, is in agreement that
Terhaar, who has been institutionalized since he was approximately ten years old, will
need individualized transition services to help best reintegrate him into his community.
The dispute lies in whether Terhaar should receive those services from community
providers outside of MSOP’s control, or whether Terhaar should receive those services
from MSOP while housed at CPS. However, nothing precludes the Executive Director
from reevaluating the situation upon Terhaar’s reduction in custody to CPS to determine
that a petition for unconditional discharge would be more appropriate, especially after an
aftercare plan is developed that includes community services appropriate for Terhaar.
Defendants oppose Plaintiffs’ Motion for the Creation of an Aftercare Plan for E.T.
Pursuant to Minn. Stat. § 253D.35 (Doc. No. 526), to the extent that they disagree with
any legal merit to the motion. However, they have agreed, nonetheless, to provide
aftercare. (Doc. No. 539 at 1-2, 7; Doc. No. 567 at 5.) Therefore, it appears that
Plaintiffs’ motion is moot. Nonetheless, if Defendants do not create an aftercare plan for
Terhaar as they have represented that they will, Plaintiffs can renew their motion.
Therefore, Plaintiffs’ Motion for the Creation of an Aftercare Plan for E.T. Pursuant to
Minn. Stat. § 253D.35 (Doc. No. 526), is denied without prejudice as moot.
29
Condo. Ass’n of Lakeside Vill., Inc., 796 F.2d 384, 387–88 (11th Cir. 1986) (quoting 10A
C. Wright, A. Miller & M. Kane, Federal Practice and Procedure 2d § 2758); accord
MacMillan–Bloedel, Inc. v. Firemen’s Ins. Co. of Newark, 558 F. Supp. 596, 599 (S.D.
Ala. 1983) (“Where another remedy would be a more effective or appropriate remedy,
the court may properly decline to assume jurisdiction.”); see also Cunningham Bros. v.
Bail, 407 F.2d 1165, 1168 (7th Cir. 1969) (concluding that more effective relief was
obtainable by other procedures); New York Life Ins. Co. v. Roe, 102 F.2d 28, 31 (8th Cir.
1939) (denying declaratory relief where traditional remedy was available). The pendency
of Terhaar’s current petition, and MSOP’s affirmance that it will support a future,
expedited petition for discharge, does present a more effective and efficient forum for the
resolution of Terhaar’s particular situation. Cf. United States Fidelity and Guaranty Co.
v. Murphy Oil USA, Inc., 21 F.3d 259, 263-64 (8th Cir. 1994) (concluding district court
did not abuse its discretion in deciding to abstain from declaratory-judgment action when
parallel state-court action was pending); Travelers Indem. Co. v. Winmill, 294 F. Supp.
394, 397 (D. Minn. 1968) (“The problem [of determining whether to exercise a court’s
declaratory judgment discretion] should be appraised in the light of common sense,
having regard to federal-state relations, comity between courts of concurrent jurisdiction,
the potentials of the respective systems for expert and comprehensive solution, and
factors such as cost and convenience to the public as well as to the parties.”). If MSOP
was not in agreement to expedite this matter, and if the state process itself was not
proceeding expeditiously with respect to moving Terhaar along, then this Court might be
deciding this issue differently. Therefore, in the event that Terhaar’s petitions are not
30
expedited, the Court will not hesitate to either set a firm time limit or take up Terhaar’s
relief petition immediately after trial, which itself will be expedited as explained further
below. Accordingly, the Court declines to exercise its discretion in issuing a declaration
at this time and denies Plaintiffs’ motion for declaratory judgment without prejudice.
Motion Regarding Rhonda Bailey
After receipt of the Rule 706 experts’ report on Rhonda Bailey, Plaintiffs’ counsel
filed a “Motion to Immediately Transfer R.B. to an Appropriate Treatment Facility.”
(Doc. No. 478.) This motion was later amended to clarify that Plaintiffs are requesting
through this motion an order “declaring that Rhonda Bailey is being held in an
unconstitutional manner[.]” (Doc. No. 578 at 2.) Plaintiffs’ motion raises two primary
issues. First, whether it is constitutional for Defendants to not provide a less restrictive
alternative for Bailey’s confinement. As alleged in the Second Amended Complaint,
“[t]he only MSOP facilities are the secure treatment locations at Moose Lake and
St. Peter,” and “MSOP does not provide for any less restrictive alternatives to
confinement at Moose Lake or St. Peter, such as halfway houses or other less secure
facilities.” (Doc. No. 301, Second Am. Compl. ¶ 68.) And second, Plaintiffs’ motion
raises the issue of whether the treatment provided to Bailey is so inadequate that it
violates her constitutional rights. 18
18
Defendants continue to maintain that the proper legal standard to apply to
Plaintiffs’ inadequate treatment claims is whether “MSOP’s treatment of a particular
patient ‘shocks the conscience.’” (Doc. No. 495 at 10); see Strutton v. Meade, 668 F.3d
549, 557-58 (8th Cir. 2012). As the Court has previously noted, prior to Strutton, the
Eighth Circuit applied the Youngberg professional judgment standard to a sex offender’s
(Footnote Continued on Next Page)
31
In response to Plaintiffs’ motion, Defendants assert that they believe the
Department has provided Bailey with appropriate sex-offender treatment and care while
at MSOP. (Doc. No. 495 at 1.) At the same time, however, Defendants also represent
that they are “willing to make improvements to [Bailey’s] care and treatment based on
the Rule 706 Experts Report, and ha[ve] reached out to experts in the field of female
sex-offender treatment to find ways to provide better treatment and care to [Bailey] in her
current placement,” and they are “willing to explore options to transfer [Bailey] to
(Footnote Continued From Previous Page)
right to treatment claims. See Bailey v. Gardebring, 940 F.2d 1150, 1153-54 (8th Cir.
1991). Again, the Court need not decide the applicable standard for Plaintiffs’ right to
treatment claims at this time. However, the Court does note that, regardless of the
applicable standard, the record before the Court at this time does contain evidence
supporting both standards. (See Doc. No. 481, Gustafson Decl. ¶ 3, Ex. A (Rule 706
expert report on Bailey) at 5 (“There is no evidence to suggest that there has been any
consultation or incorporation of specialized sexual offender treatment for females, or
references that procedures supported by contemporary research and practice have been
implemented.”); id. at 6 (stating they have “grave concerns . . . regarding the means by
which Ms. Bailey’s clinical presentation and risk are currently being addressed and
managed”); id. at 7 (“[T]he standard across programs, including civil commitment
programs like MSOP, is to separate men and women in the environment and in
treatment.”); id. at 7 (concluding that “Ms. Bailey’s current housing and treatment
scenario is unprecedented in contemporary sexual offender treatment and management;
even more so in regard to sexual offender civil commitment”); id. at 8 (opining that
Bailey “is quite inappropriately placed at the MSOP St. Peter site” and “[c]ontinued
placement at MSOP is iatrogenic to Ms. Bailey, in that this placement likely exacerbates,
rather than ameliorates, the issues that influence her inappropriate sexual behavior,” and
stating they “believe strongly that she should be relocated to a facility where she can
receive care and treatment that is sensitive to both her gender and her clinical
presentation”); see also July 14 Tr. at 108, 139, 142-43 (testifying that the Rule 706
experts were shocked to find Bailey’s situation with respect to her treatment and her
living conditions).)
32
another facility.” 19 (Id. at 1-2) They note that they do not believe that there are “suitable
transfer options at this time that meet both [Bailey’s] treatment and safety needs.” (Id. at
2.)
The Rule 706 experts testified that if they were asked to, and if the State provided
sufficient funds, they could create or find a residential and treatment situation for Bailey
that would satisfy their professional opinion of what is needed for her. (July 14 Tr. at
107-08, 132, 141.) And counsel for Defendants reiterated their “willingness to have a
conversation . . . about different placement for Ms. Bailey,” and stated that they
continued to reach out to various experts on female sex offender treatment. (July 15
Tr. at 367-68.) After the hearings, counsel for both parties have continued to talk about
reaching an agreement on the proper placement and treatment for Bailey, and Defendants’
counsel has notified the Court that they are, in fact, consulting with experts in the field of
female sex offender treatment as to what would be the most appropriate placement and
treatment for Bailey. In light of these pending discussions, and the likelihood that an
agreement on Bailey’s transfer (or provisional discharge) would moot Plaintiffs’ pending
motion with regard to Bailey, the Court denies the motion at this time without prejudice
(and stays Bailey’s habeas case) to allow the parties an opportunity to find a just
resolution that would appropriately meet Bailey’s individual residential and treatment
19
The Court notes its frustration with the fact that Defendants are only now
“reaching out” and “exploring options” for Bailey, after receiving the Rule 706 expert
report and Plaintiffs’ motion, when Bailey has been in their treatment program for over
twenty years.
33
needs. If an agreement is not reached in a timely manner, the Court will, like with
Terhaar, take up Bailey’s relief petition immediately after trial.
CONCLUSION
Although Defendants were responsive to the experts’ discovery of the fact that a
juvenile offender like Terhaar was being held indefinitely at MSOP despite, in the experts’
opinion, his lack of dangerousness or need for sex offender treatment, this does not
explain how this troubling state of affairs came about. It is obvious that but for this
litigation, Terhaar, who was stuck with hundreds of other persons in Phase I of MSOP,
would likely have languished for years in the prison-like environment of
MSOP-Moose Lake without any realistic hope of gaining his freedom. 20 And of course it
is of great concern to the Court that this may not be an aberrant case of system failure but
is symptomatic of a larger systemic problem of constitutional concern. This concern is
heightened by the experts’ opinion about the grossly inadequate—even shocking—
20
The Court notes its growing concern that MSOP is perhaps not doing its part in
making sure people are properly placed in various phases of its program, as the experts
testified that Terhaar’s case is “not an extreme outlier, but rather is representative of the
cases that [the experts] will be reporting on with respect to . . . juveniles.” (July 14 Tr. at
109, 123; July 15 Tr. at 216.) The OLA Report points out that, in March 2011, when the
Report was issued, “[o]nly 7 percent of MSOP clients are in the last of the program’s
three phases of treatment.” (OLA Report at 71.) Further, the Court’s concern is
supported by the Task Force Report, as the Task Force stated that it was “acutely aware
that one of the most striking features of the MSOP as it has operated over time is the
negligible number of releases from the program.” (Task Force Report at 16.) The Task
Force also said that “[s]ignificant modifications of the process by which the need for
continued commitment is determined and the standards for evaluating that need will
address the serious issues of duration of commitment and the absence of meaningful
release from commitment.” (Id.)
34
treatment of Bailey, the lone female sex offender in the otherwise all male MSOP. The
Court also is mindful of the fact that Defendants have not presented their own evidence at
trial to defend the constitutionality of MSOP, and the Court is keenly aware of its
responsibility not to prejudge the merits of this class action. But the Court is obligated
pursuant to the Federal Rules of Civil Procedure to expedite the trial on the merits and
allow a full record on the important constitutional issues affecting this certified class to
be developed. See 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2950 (3d ed. 2014) (“It long has been recognized that
an accelerated trial on the merits often is appropriate when a preliminary injunction has
been requested.[] If a Rule 65(a) injunction is . . . denied, a quick disposition of the
merits shortens the period in which plaintiff may be threatened by irreparable harm. In
either situation the urgency that is characteristic of cases involving preliminary-injunction
applications makes a rapid determination of the merits especially important.”) Therefore,
counsel for the parties are required to attend the scheduling conference set for August 21,
2014, with 2014 trial dates in mind.
While the Court will exercise its discretion to decline entering any declaratory
judgment at this time, it will, if necessary, “conduct additional proceedings after the
liability phase of the trial to determine the scope of individual relief.” Marshall, 602 F.2d
at 1296 (quotations omitted). And it will do so promptly. The Court recognizes that
while some injunctive relief may ultimately be awarded to both the class and individual
members of the class, ultimate release from the detention at the MSOP may be required
through habeas or procedures that may be mandated under 42 U.S.C. § 1983. Civil rights
35
actions such as this one are an appropriate vehicle for challenges to civil commitment
statutes, and declaratory and prospective injunctive reliefs are available in such cases. 21
21
Simply put, Courts have allowed a § 1983 challenge when “‘release was neither
asked nor ordered.’” Chancery Clerk of Chickasaw County v. Wallace, 646 F.2d 151,
157 (5th Cir. 1981) (quoting Gerstein v. Pugh, 420 U.S. 103, n.6 (1975) (“Because
release was neither asked nor ordered, the lawsuit did not come within the class of cases
for which habeas corpus is the exclusive remedy.”)); see also Goldy v. Beal, 429 F. Supp.
640, 644 (M.D. Pa. 1976) (“Because plaintiffs in this case do not request release from
custody, they are not required to proceed by habeas corpus.”). And in a challenge to a
civil commitment statute, plaintiffs may seek a declaration that the statute under which
they were committed is unconstitutional and an injunction enjoining defendants from
enforcing and executing the statute in its present version. See Goldy, 429 F. Supp. at
645-46. Such was the case in Wallace, as the Fifth Circuit explained:
What the plaintiffs ask in this case is a constitutional evaluation under
§ 1983 of the procedures under which they were committed to state mental
institutions and under which they are now held in state mental institutions.
If constitutional defects in such procedures are found, then by virtue of the
declaratory judgment which plaintiffs seek, each confined class member
would become entitled to a review of his ongoing confinement under
corrected procedures. If the District Court finds aspects of the Mississippi
commitment procedures unconstitutional, it can suggest the basic
constitutional requirements which must be met in dealing with involuntary
confinement in mental institutions. If the appropriate legislative body does
not within a reasonable time provide such procedures the District Court
may entertain applications for relief.
646 F.2d at 158.
In addition, the line of cases after Preiser v. Rodriguez, 411 U.S. 475 (1973), has
demarcated relief that is available under § 1983 to individuals confined by the state under
procedures claimed to be constitutionally infirm. E.g., Wilkinson v. Dotson, 544 U.S. 74,
81 (2005) (“[P]risoner’s claim for an injunction barring future unconstitutional
procedures did not fall within habeas’ exclusive domain.” (citing Edwards v. Balisok, 520
U.S. 641, 648 (1997)); id. at 82 (stating that the § 1983 prisoner action that would result
in new parole hearing or new eligibility review may proceed because it would not
“necessarily spell speedier release”); Heck v. Humphrey, 512 U.S. 477, 482-83 (1994)
(stating that a § 1983 action that would not determine the invalidity of an outstanding
criminal judgment may proceed to challenge “wrong procedures” on denial of good-time
(Footnote Continued on Next Page)
36
Yet, by both expediting the trial, and by allowing the state petitioning process to go
forward (on an expedited track as has been requested by the parties), relief through
habeas may ultimately be mooted. Federal habeas, however, may be necessary if either
the relief is not mooted or if the State does not proceed with speed. It may also be that,
apart from habeas, declaratory and prospective injunctive relief may be granted regarding
the constitutionality of the Minnesota sex offender commitment statutes on their face or
as applied. Because of the various tracks underway that will directly address relief for
Terhaar and Bailey, the Court now stays the federal habeas cases (Civ. No. 14-2002
(DWF/JJK) and Civ. No. 14-2362 (DWF/JJK)), so as not to interfere with the class-action
trial and state processes. The Court will lift the stay in those federal habeas cases later if
needed to provide adequate remedies for Terhaar or Bailey.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Plaintiff’s Motion for Declaratory Judgment and to Immediately Discharge
E.T. from Civil Commitment (Doc. No. [469]) is DENIED WITHOUT PREJUDICE;
(Footnote Continued From Previous Page)
credits); Wolff v. McDonnell, 418 U.S. 539, 555 (1974) (permitting inmates to use § 1983
to obtain a declaration that disciplinary procedures are invalid, and “by way of ancillary
relief[,] an otherwise proper injunction enjoining the prospective enforcement of invalid
prison regulations”).
37
2.
Plaintiffs’ Motion for the Creation of an Aftercare Plan for E.T. Pursuant to
Minn. Stat. § 253D.35 (Doc. No. [526]) is DENIED WITHOUT PREJUDICE;
3.
Plaintiffs’ Amended Motion for Declaratory Judgment and to Immediately
Transfer R.B. to an Appropriate Treatment Facility (Doc. No. [578]) is DENIED
WITHOUT PREJUDICE;
4.
Eric Terhaar’s federal habeas case (Civ. No. 14-2002 (DWF/JJK)) is
STAYED;
5.
Rhonda Bailey’s federal habeas case (Civ. No. 14-2362 (DWF/JJK)) is
STAYED;
6.
The parties shall meet with the Court on August 21, 2014, as previously
scheduled (see Doc. No. 566), to discuss moving the trial date in this case to a date in
2014.
Dated: August 11, 2014
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
38
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