Standoff over MSOP at a critical juncture

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December proceedings in lawsuit loom ahead of 2014 legislative session

After years of inactivity punctuated by sporadic talks at the Legislature, the issue of Minnesota’s civil commitment of the sexually dangerous seems to be coming to a head. The question now is whether a judge will intervene to force changes in the Minnesota Sex Offender Program before the 2014 Legislature even convenes.

The topic returned to mainstream political consciousness last month when some Republicans, including gubernatorial candidate and former House Speaker Kurt Zellers, R-Maple Grove, began criticizing Gov. Mark Dayton over the proposed transfer of six men from the Minnesota Security Hospital in St. Peter to a less restrictive facility in Cambridge.  In response, Dayton called a press conference to announce that he would oppose those transfers, saying the issue should instead be handled by the Legislature.

It’s not the first time lawmakers have been given the difficult assignment — which so far remains incomplete, despite near-constant pressure from neutral authority figures. The Sex Offender Civil Commitment Task Force, a bipartisan group of legal, medical and legislative personnel, is due to release its final recommendations on Dec. 1.

The report is intended to inform the legislative debate on the subject when the 2014 session begins in late February. But the 700-plus civilly committed Minnesotans are not waiting for another season of committee hearings and sensitive negotiations. In a new round of legal filings in their class-action lawsuit against the state, the plaintiffs are seeking immediate relief from U.S. District Court Judge Donovan Frank, and their attorneys have called upon Frank to appoint a special master to take over the process.

At issue is the difficult and politically charged question of how the state should handle the detention and release of sex offenders and potential offenders who have been deemed dangerous.

Rep. Tina Liebling, DFL-Rochester, chair of the House Health and Human Services Committee and a member of the task force, expressed disappointment with what she called “political demagoguery” since the end of the 2013 session. With a Dec. 18 hearing date set in Frank’s court, Liebling said lawmakers should be worried about losing control over reforms to the law due to their failure to act.

“I’ve been concerned about this all along — this is not new,” Liebling said. She added: “It’s just that much more urgent.”

State asks for lawsuit dismissal

The population under civil commitment was not the only side to argue its case in the latest round of legal submissions. Representing the state and the Department of Human Services (DHS), the attorney general’s office also filed a motion to dismiss the case, which Judge Frank will take up during the same mid-December hearing.

The motion is a normal step for any legal defendant. But Roberta Opheim, State Ombudsman for Mental Health and Developmental Disabilities, said DHS has otherwise expressed conviction in wanting to reform the civil commitment practice. Opheim said she would guess the possible implications of the lawsuit are not lost on DHS Commissioner Lucinda Jesson, an attorney by trade.

On Monday, DHS Deputy General Counsel Robin Benson testified before the Senate Judiciary Committee, explaining the background of the state’s civil commitment practice. Benson documented what he called a “surge” in commitment recommendations from the Department of Corrections after the kidnapping and murder of Dru Sjodin in 2003.

Since that highly publicized event, Benson told legislators, the program has been a matter of one-way traffic, with an increasing number of offenders consigned to secure facilities like the Moose Lake, while only a single individual has been transferred to a less restrictive setting. At the current rate, the Minnesota Sex Offender Program (MSOP) will include 1,000 people by the end of this decade.

“I think the issue here,” Benson told legislators, “is whether Minnesota can sustain sex offender civil commitment as a means of managing sex offenders and preventing further sexual violence.”

Despite the apparent willingness of Jesson and her agency to face the issue, Opheim said that’s only one piece of a complicated puzzle.

“They can’t do it alone,” she said. “We need the support of the Legislature, the governor, the attorney general and the state of Minnesota.”

Task force recommendations

In a draft copy of its recommendations in late October, the civil commitment task force suggested that legislators should create a centralized and professional system to screen possible candidates for civil commitment, and to handle the appeals of those already within the program. At the heart of the new process would be a newly created special court, where retired judges would handle individual cases.

Under the draft proposal, the standard for commitment would be heightened from the current “clear and convincing” threshold for assessing risk to “beyond a reasonable doubt,” a significantly higher burden of proof. In his own testimony to the Senate Judiciary Committee, former Supreme Court Chief Justice and task force chair Eric Magnuson said the group’s recommendations seem to be changing “every day,” but that he planned on meeting the Dec. 1 deadline.

Liebling plans to carry legislation modeled on the task force’s work into the 2014 session, but is still wary of continued political gamesmanship after last year’s session, when she carried a bill that would have enacted moderate reforms to the MSOP system.

House Speaker Paul Thissen had been in talks with his Republican counterparts, seeking assurances that the GOP caucus would not vote against the bill on party lines or use it as political fodder, Liebling recalls. With no such deal in place, the bill never came to a House floor vote despite its having passed in the Senate.

Going into this session, Liebling said she would want at least some buy-in from House Republicans to help take some of the sting out of the issue, politically.

Liebling’s first reaction to the recent gubernatorial dust-up over sex offenders was fear that the issue would become even more politicized. But she has come around to a different way of thinking. She now says the renewed focus on MSOP and the related lawsuit has led to what Liebling calls “preliminary conversations” with members of the GOP minority.

“I don’t think people really believed that the judge could decide to change the program,” Liebling said. “I think there is a changing understanding about that.”

Fellow task force member Rep. Jim Abeler ,R-Anoka, said he disagreed with Liebling’s insistence on the need for broad bipartisan support. It is the majority party’s responsibility to pass legislation, even if doing so makes its members politically vulnerable. For his part, Abeler said he would be comfortable if he was the only House Republican to vote in favor of a civil commitment reform bill.

Abeler did, however, echo a call from another task force member, Sen. Warren Limmer, R-Maple Grove, who said political figures should declare a “political truce” on the war of words.

“If you can’t call a truce on this,” Abeler said, “than I don’t know how you ever make the hard decisions.”

December hearing on motions

That is, if the Legislature gets another chance at it. Attorney Dan Gustafson, one of the lead plaintiffs’ lawyers handling the MSOP civil-action suit, said he believes that following the Dec. 18 hearing, Judge Frank will decide on the major motions before him by some point in late December or early January.

“I don’t see any reason why he would wait to rule,” Gustafson said. “Judge Frank is relatively prompt when it comes to ruling on motions.”

As evidence that Frank wants to see the process move forward, Gustafson pointed out that the motions hearing was originally scheduled to take place in February, but was bumped up by several months; to Gustafson’s knowledge, Frank did not explain why he rescheduled the hearing.

It remains to be seen how Frank views the court case in relation to the parallel process of the task force, though it seems almost certain the judge is monitoring the work of a panel that was, after all, created by his own order. Gustafson said he can’t presume to know Frank’s thought process, but seemed hopeful that the case would see some progress in the court before the Legislature revisits the issue.

“With the way the Legislature works, you might be waiting forever,” he said. “You never know when they might act.”