Van Orden et al v. Healthlink, Inc. et al

Filing 500

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' motion for clarification and Defendants' motion for reconsideration are both GRANTED in part and DENIED in part, as set forth above. (Doc. Nos. 472 & 473 .) The Court will issue a separate Amended Memorandum Opinion. Signed by District Judge Audrey G. Fleissig on December 21, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN VAN ORDEN, et al.,
Plaintiffs,
v.
KEITH SCHAFER, et al.,
Defendants.

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Case No. 4:09CV00971 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the parties’ motions (Doc. Nos. 472 & 473) to
reconsider the Court’s Memorandum Opinion (“Opinion”) dated September 11, 2015, which
was issued following a bench trial on the first phase of this case—the liability phase. Both
sides argue that the Court’s Opinion should be clarified or reconsidered in part. After fully
reviewing the record and the parties’ arguments, the Court will grant in part and deny in part
both motions.
BACKGROUND
Plaintiffs are civilly committed residents of the Missouri Department of Mental
Health’s (“DMH”) Sex Offender Rehabilitation and Treatment Services (“SORTS”)
facilities, who have been declared sexually violent predators (“SVP”) under Missouri’s SVP
Act, Mo. Rev. Stat. §§ 632.480–632.525. In their Fifth Amended Complaint, Plaintiffs
asserted that the SVP Act is unconstitutional as written and as applied to SORTS, and that
the reimbursement sought by the state from SORTS residents is also unconstitutional. The
Court granted Plaintiffs’ uncontested motion to bifurcate the case into separate trial

proceedings on liability and remedies. An eight-day bench trial solely on the issue of
liability was held beginning on April 21, 2015. Following the bench trial, the Court issued
the Opinion, which contained extensive findings of fact and which ultimately concluded that
the SVP Act was unconstitutional as applied in certain narrowly-defined respects.
The parties now seek reconsideration or clarification of some of the Opinion’s
findings. Plaintiffs request clarification of three points. First, on page four of the Opinion,
the Court noted that “Plaintiffs do not challenge their initial commitment.” (Doc. No. 467 at
4.) Plaintiffs request that the Court add the words “in this lawsuit” to this sentence.
Defendants do not object to this request.
Second, on page 46 of the Opinion, the Court concluded: “Thus, Plaintiffs are
correct that the Due Process Clause permits civil commitment of individuals under the SVP
Act only so long as they suffer from a mental abnormality and are likely to commit a sexual
offense if released.” Id. at 46. Plaintiffs ask that the Court change this language to mirror
the standard for commitment under the SVP Act, which references “acts of sexual violence”
rather than “sexual offenses.” Mo. Rev. Stat. § 632.498.5(4). Plaintiffs note that there is a
legally significant difference between the terms “sexual offense” and “acts of sexual
violence.” Defendants disagree.
Third, on pages 51-52 of the Opinion, the Court concluded that “although SORTS
continues to struggle with recruitment and funding, the evidence established that SORTS
has in the last year managed to adequately staff all treatment groups and to reduce treatment
group cancelations dramatically.” (Doc. No. 467 at 51-52.) Plaintiffs request that the Court
“include a finding that the ‘struggle’ with recruitment and funding [at SORTS] is ongoing

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and may require further examination or oversight.” (Doc. No. 472 at 2.) Defendants oppose
this request and argue that the evidence at trial clearly supported the Court’s finding.
Defendants have also filed a motion for reconsideration. Defendants request that the
Court reconsider its conclusion that the SVP Act imposes extra procedural hurdles for
petitions for release filed without the authorization of the director of the DMH, as compared
to petitions filed with director authorization. The Court held that unauthorized petitions are
subject to a frivolity review and may be denied without a hearing. See Doc. No. 467 at 12
(citing Mo. Rev. Stat. § 632.504). Further, the Court found that if an unauthorized petition
has been found to be frivolous or has been previously denied, the trial court must deny any
subsequent petition “unless the petition contains facts upon which a court could find the
condition of the petitioner had so changed that a hearing was warranted.” Id. Finally, the
Court found that, even if unauthorized petitions survive the frivolity review, they are subject
to a preliminary hearing, at which the petitioner has the burden to demonstrate by a
“preponderance of the evidence,” that he “no longer suffers from a mental abnormality that
makes [him] likely to engage in acts of sexual violence if released.” Id. at 13 (quoting Mo.
Rev. Stat. § 632.498.4). The Court held that only if a petitioner can make this preliminary
showing will the case proceed to trial, at which the burden of proof then switches to the state
to show by clear and convincing evidence that the person is not entitled to release.
Although Defendants concede that unauthorized petitions are subject to a frivolity
review, they argue that this review is akin to the screening of 42 U.S.C. § 1983 claims,
pursuant to 28 U.S.C. § 1915A. Moreover, Defendants argue that, other than the frivolity
review, the SVP Act’s requirements for unauthorized release petitions are the same as those

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for authorized petitions. Specifically, Defendants argue that both types of petitions are
subject to a preliminary preponderance hearing. Plaintiffs respond that both the language of
the statute and the evidence at trial support the Court’s conclusion that unauthorized
petitions are subject to more procedural requirements than authorized petitions under the
SVP Act, and that one of these additional requirements is the preponderance hearing.
DISCUSSION
As noted above, the Court bifurcated this case into separate trial proceedings for
liability and remedies, and the Opinion dealt only with the first phase of liability. As such,
it was not a final order. See Patterson v. City of Omaha, 779 F.3d 795, 800 (8th Cir. 2015)
(holding that “[t]he district court’s bifurcation of issues into separate trial proceedings did
not create two separate actions, but merely separated the action into two separate phases”
and that judgment entered after the first phase was not a final decision).
A “district court has the inherent power to reconsider and modify an interlocutory
order any time prior to the entry of judgment.” K.C.1986 Ltd. P’ship v. Reade Mfg., 472
F.3d 1009, 1017 (8th Cir. 2007); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims . . . may be revised
at any time before the entry of a judgment adjudicating all the claims[.]”). District courts
have substantial discretion in ruling on motions for reconsideration. However, in general,
“[m]otions for reconsideration serve a limited function: to correct manifest errors of law or
fact or to present newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d
407, 414 (8th Cir. 1988) (citation omitted). “A motion for reconsideration is also not the

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appropriate place to tender new legal theories for the first time.” Arnold v. ADT Sec. Servs.,
Inc., 627 F.3d 716, 721 (8th Cir. 2010) (citation omitted).
Plaintiffs’ Motion for Clarification
The Court will grant Plaintiffs’ motion as to Plaintiffs’ first two points. Regarding
the first point, in noting that Plaintiffs do not challenge their initial commitment, the Court
intended to convey that initial commitment was not at issue in this lawsuit. Therefore, the
Court will amend the first sentence of footnote two, on page four of the Opinion, to state:
“In this lawsuit, Plaintiffs do not challenge their initial commitment.”
Regarding the second point, the Court agrees that there is a distinction between
sexual offenses and acts of sexual violence, and that the purpose of the SVP Act is to protect
against the latter. See In re Care & Treatment of Coffman, 225 S.W.3d 439, 445 (Mo. 2007)
(finding that the purpose for which individuals are involuntarily committed under the SVP
Act is to “protect[] society from persons who are likely to commit future sexually violent
crimes if not committed”). As the Court previously held, the Due Process Clause requires
that the nature and duration of commitment bear some reasonable relation to this purpose.
See Jackson v. Indiana, 406 U.S. 715, 738 (1972). Therefore, the Court will amend its
conclusion on page 46 of the Opinion to state: “Thus, Plaintiffs are correct that the Due
Process Clause permits civil commitment of individuals under the SVP Act only so long as
they suffer from a mental abnormality and are likely to commit an act of sexual violence if
released.”
However, the Court will deny Plaintiffs’ final request to include a finding that the
“struggle” with recruitment and funding at SORTS is ongoing and may require further

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examination or oversight. The Court’s finding on pages 51-52 of the Opinion already
reflects that “SORTS continues to struggle with recruitment and funding.” (Doc. No. 467 at
51) (emphasis added.) But the question in this case was whether such deficiencies rendered
treatment modalities at SORTS unconstitutional. The Court found that they did not, and
Plaintiffs have not convinced the Court otherwise. Therefore, the Court finds no basis upon
which to order further examination or oversight of recruitment and funding issues in this
respect.
Defendants’ Motion for Reconsideration
The Court will grant Defendants’ motion in part. The Missouri Supreme Court once
described the SVP Act’s separate tracks for authorized and unauthorized release petitions as
follows:
There are two methods by which a sexually violent predator can obtain release
after he has been committed. First, if the director of the department of mental
health determines “that the person's mental abnormality has so changed that
the person is not likely to commit acts of sexual violence if released,” then the
director must authorize the person to petition the court for release. Section
632.501. The circuit court then holds a hearing where the state has the burden
to show that the petitioner should not be released. Id.
Second, if the department of mental health does not conclude that the sexually
violent predator should be released, he is nevertheless free to petition for his
release at any time. Section 632.498. . . . Under the 2000 version of the statute,
the circuit court was required to set a hearing on the petition unless the
petition is frivolous, and, if the court determined that there was probable cause
to believe that the person should be released, then a trial was to be held. At
this trial, which may be by jury, the state had the burden to prove beyond a
reasonable doubt that the person should not be released. Thus, the 2000 statute
provided a two-part test: first, the committed person must show probable
cause why he should be released; second, the state must show beyond a
reasonable doubt why he should not.

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Section 632.498 was amended in 2004. The amendment raises the initial
showing that must be made by the sexually violent predator from “probable
cause” to a “preponderance of the evidence.”
Coffman, 225 S.W.3d at 443; see also Care & Treatment of Schottel v. State, 159 S.W.3d
836, 839 (Mo. 2005) (holding that if the director determines that a person qualifies for
release, the court holds a hearing at which the burden is on the state to prove otherwise, but
that “if the director does not determine that the person qualifies for release, then a different
process ensues,” in which the court must hold a “preliminary probable cause hearing” before
setting a second hearing at which the burden switches to the state).
But as Defendants correctly note, the SVP Act was amended again in 2006. The
2006 amendments changed the burden of proof on the state from “beyond a reasonable
doubt” to “clear and convincing evidence.” 2006 Mo. Legis. Serv. H.B. 1290. The
amendments also changed the provision governing director-authorized release petitions,
§ 632.501, to add that “[t]he hearing and trial, if any” on such petitions “shall be conducted
according to the provisions of section 632.498.” Mo. Rev. Stat. § 632.501. Section
632.498, in turn, contains several provisions: one requiring annual review of the committed
person’s mental condition (§ 632.498.1); one authorizing persons to petition for release over
the director’s objection (§ 632.498.2); one describing service requirements for petitions filed
over the director’s objection (§ 632.498.3); one describing the committed person’s rights at
the preponderance hearing (§ 632.498.4); and one setting forth the requirements for a trial at
which the state bears the burden of proof (§ 632.498.5).
The Court agrees with Defendants that the 2006 amendment to § 632.501 appears to
incorporate both the preponderance hearing and trial provisions of § 632.498. But it is not

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clear what effect the phrase “if any,” in § 632.501, has on these requirements. Plaintiffs
suggest that the phrase means that a hearing or trial need not be held, perhaps based on the
assumption that the state would not insist on a hearing and trial for director-authorized
petitions. And Plaintiffs presented several witnesses at the bench trial in this case, who
testified that director authorization streamlines the process to petition for release by cutting
short the hearing requirements. Defendants never rebutted this evidence or even crossexamined Plaintiffs’ witnesses on this issue. Rather, Defendants’ own expert admitted that
director authorization would fast-track the process to petition for release. And because the
director of the DMH has not authorized a single person committed under the SVP Act to
petition for release, there was no evidence as to the actual experience of authorized
petitioners.
However, to avoid the implication that director-authorization petitions are never
subject to a preponderance hearing, the Court will amend pages 12 through 13 of its Opinion
to track the language of the SVP Act, as amended. Specifically, the Court will first outline
the SVP Act’s procedures for release petitions filed without director authorization, as stated
in §§ 632.504 and 632.498. The Court will then clarify that, under § 632.501, the “hearing
and trial, if any” for release petitions filed with director authorization “shall be conducted
according to the provisions of section 632.498.”
Except as stated above, the Court will deny Defendants’ motion to reconsider.
Separate and apart from the preponderance hearing requirement, it is undisputed that, as
stated in the Opinion, the SVP Act imposes extra procedural hurdles for release petitions
filed without director authorization. Defendants concede that unauthorized release petitions

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are reviewed for frivolity and denied without a hearing if frivolous. This is not merely akin
to the frivolity review of 42 U.S.C. § 1983 claims, as Defendants contend. Rather, the SVP
Act also requires that if an unauthorized release petition has been previously denied, “the
court shall deny the subsequent petition unless the petition contains facts upon which a court
could find the condition of the petitioner had so changed that a hearing was warranted.”
Mo. Rev. Stat. § 632.504. Therefore, the Court will not reconsider its conclusion in the
Opinion that release petitions filed without director authorization are subject to more
procedural hurdles than those filed with authorization.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiffs’ motion for clarification and
Defendants’ motion for reconsideration are both GRANTED in part and DENIED in part,
as set forth above. (Doc. Nos. 472 & 473.) The Court will issue a separate Amended
Memorandum Opinion.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 21st day of December, 2015.

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