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Judge: No stay while state appeals sex-offender order

No more waiting.

That’s U.S. District Court Judge Donovan Frank’s message to the state of Minnesota, which has asked for a stay during the pendency of the state’s appeal from his First Interim Relief Order, issued Oct. 29, 2015. On Nov. 23, the judge said no.

The Oct. 29 order in this ongoing litigation over the constitutionality of the Minnesota Sex Offender Program, now in the remedies phase. The state had the opportunity to advocate for its preferred corrective action but refused to do so, arguing that the law is constitutional and will be so determined on appeal.

Frank directed the state to begin immediately to complete or plan for risk and phase- placement re-evaluations now or in the future, with the first due within 30 days of the Nov. 23 order. The point is to make the MSOP move faster in deciding who needs different treatment. The state appealed and requested a stay.

The state struck back hard, asking the 8th Circuit for a stay. In a fashion rarely seen in a federal court, the state directly criticized Frank: “The stay is also warranted given the irregular proceedings that led to the court’s liability and injunctive orders and the erroneous legal analysis on which those orders are based. Indeed, it is apparent that the court was intent on effecting certain public policy reforms, ‘[w]hether or not the system is constitutionally infirm.’”

On Tuesday, the House Rules and Legislative Administration Committee approved by voice vote a motion to file an amicus brief in support of the state’s position. House Majority Leader Joyce Peppin, R-Rogers, committee chair, said the Lommen Abdo law firm would do the work for a flat fee of $20,000 — a smaller figure than in past instances when the House hired outside counsel in 2010 and 2011.

The plaintiffs’ attorney, Dan Gustafson, said the state is diverting attention from the merits of the case, which is that the court wants the state to honor the constitutional rights of the residents who have been involuntarily committed.

“I was really pleased with judges’ order on the stay. I think the court realized the state’s request for a stay based on public safety is not really related to the judges’ order. The stay motion is indicative of the state’s refusal to do the politically difficult thing and do the constitutionally right thing. Everybody knows the system is broken,” Gustafson said.

Frank said he weighed the four factors for granting a stay motion: likelihood of success on the merits, irreparable harm in the absence of a stay, whether the stay would substantially injure the non-moving party and the public interest.

Frank found the state came up short on all four factors, despite what in a footnote he called the state’s mischaracterizations of the record that take the facts out of context and distort the record.

First, the state has failed to carry the burden of showing a strong likelihood of success on appeal on any of its challenges. The state challenged the court’s appointment of Rule 706 experts because they were for the benefit of the plaintiffs, although the state had agreed to the experts. “Just because the Rule 706 Experts made findings in Plaintiffs’ favor does not retroactively demonstrate that they were appointed to develop Plaintiffs’ case,” Frank wrote.

Frank said the court’s appointment of Rule 706 experts was proper even though the state objected and the state’s argument that the court orders improperly challenge the fact and duration of plaintiffs’ commitments in violation of case law had already been rejected by the court.

The state also argued that it has a strong likelihood of success on appeal because the court had not found concrete, identifiable harm suffered by any plaintiff, an argument Frank called meritless. The judge observed that all the class members had suffered an injury in fact — the loss of liberty in a manner not narrowly tailored to the purpose of commitment. Frank also said the court had correctly applied a strict-scrutiny standard to the defendants’ case.

He also found the defendants did not demonstrate irreparable harm sufficient to warrant a stay because the defendants have the option of requesting alternative deadlines in which to complete the ordered relief. And when the state argued that Frank should have applied a “conscience-shocking” standard to the plaintiffs’ claims, rather than strict scrutiny, Frank responded that strict scrutiny is the right standard, but a “conscience-shocking” standard would lead the court to the same result.

Frank also declined to grant a stay based on administrative or monetary harm that the state brought on itself. The court implemented remedies that had been proposed to defendants for several years, and defendants have failed to offer any alternative remedies. On the contrary, some of the remedies ordered by the judge are already underway, according to testimony offered by Minnesota Department of Human Services Commissioner Lucinda Jesson.

The state also mischaracterized the real and substantial injury to class members by their unconstitutional detention, Frank said. If the state is granted a stay, plaintiffs will continue to suffer each day by unjustified and unconstitutional deprivation of their fundamental liberty interests. This factor weighed strongly against a stay, the judge said.

Finally, Frank said that the public interest in enforcing the constitution weighs in factor of denying a stay. “The Court’s Order simply requires Defendants to establish a system through which individuals who are assessed to no longer pose a safety risk may be promptly transferred from the MSOP to a less restrictive alternative…or released into the community with proper transitional services. (Emphasis by court.)

About 700 people are confined in sex offender facilities in Moose Lake or St. Peter. When the case started, no one had ever been completely released.


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