                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-3485
                       ___________________________

 Kevin Scott Karsjens; David Leroy Gamble; 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

                      lllllllllllllllllllll Plaintiffs - Appellees

                                          v.

Emily Johnson Piper; Kevin Moser; Peter Puffer; Nancy Johnston; Jannine Hebert;
                  Ann Zimmerman, in their official capacities

                    lllllllllllllllllllll Defendants - Appellants

                            ------------------------------

                      Minnesota House of Representatives

                lllllllllllllllllllllAmicus on Behalf of Appellant(s)

        Eric Steven Janus; American Civil Liberties Union of Minnesota

                 lllllllllllllllllllllAmici on Behalf of Appellee(s)
                                      ____________

                   Appeal from United States District Court
                  for the District of Minnesota - Minneapolis
                                 ____________
                              Submitted: April 12, 2016
                               Filed: January 3, 2017
                                   ____________

Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
                         ____________

SHEPHERD, Circuit Judge.

       Class plaintiffs, civilly committed sex offenders, bring a facial and as applied
challenge under 42 U.S.C. § 1983, claiming their substantive due process rights have
been violated by Minnesota’s Civil Commitment and Treatment Act and by the
actions and practices of the managers of the Minnesota Sex Offender Program
(MSOP). The Minnesota state defendants in this action are managers of
MSOP—Emily Johnson Piper, Commissioner of the Minnesota Department of
Human Services; Kevin Moser, MSOP Facilities Director at Moose Lake; Peter
Puffer, MSOP Clinical Director; Nancy Johnston, MSOP Executive Director; Jannine
Herbert, MSOP Executive Clinical Director; and Ann Zimmerman, MSOP Security
Director (collectively “state defendants”). After several months of litigation,
including a six-week bench trial, the district court found for plaintiffs and entered an
expansive injunctive order. The district court applied incorrect standards of scrutiny
when considering plaintiffs’ claims, thus we reverse the finding of substantive due
process violations and vacate the injunctive relief order. We remand to the district
court for further proceedings to address the remaining claims.

                                           I.

A. Minnesota Statutory Structure

     In 1994, the Minnesota legislature enacted the Minnesota Civil Commitment
and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic

                                          -2-
Personalities (MCTA). MCTA is now codified at Minnesota Statute § 253D. Under
the MCTA, a county attorney in Minnesota may petition a state district court to civilly
commit a sexually dangerous person1 or a person with a sexual psychopathic
personality2 to a secure treatment facility. Minn. Stat. Ann. § 253D.07(1)-(2). If the
county attorney demonstrates by clear and convincing evidence that a person is a
sexually dangerous person or has a sexual psychopathic personality, “the court shall
order commitment for an indeterminate period of time and the committed person shall
be transferred, provisionally discharged, or discharged, only as provided in this
chapter.” Minn. Stat. Ann. § 253D(3)-(4). A person subject to commitment under
MCTA is entitled to be represented by counsel, and if the person does not provide
counsel for himself, the court appoints a qualified attorney to represent the person.
Minn. Stat. Ann. § 253D.20.

      Once committed under MCTA, a committed person or the executive director
of the Minnesota Sex Offender Program may petition for a reduction in custody,
which includes “transfer out of a secure treatment facility,3 a provisional discharge,4

      1
      MCTA defines “sexually dangerous person” as “a person who: (1) has
engaged in a course of harmful sexual conduct . . . ; (2) has manifested a sexual,
personality, or other mental disorder or dysfunction; and (3) as a result, is likely to
engage in acts of harmful sexual conduct . . . .” Minn. Stat. Ann. § 253D.02(16).
      2
        MCTA defines “sexual psychopathic personality” as “the existence in any
person of such conditions of emotional instability, or impulsiveness of behavior, or
lack of customary standards of good judgment, or failure to appreciate the
consequences of personal acts, or a combination of any of these conditions, which
render the person irresponsible for personal conduct with respect to sexual matters,
if the person has evidenced, by a habitual course of misconduct in sexual matters, an
utter lack of power to control the person’s sexual impulses and, as a result, is
dangerous to other persons.” Minn. Stat. Ann. § 253D.02(15).
      3
        “The following factors must be considered in determining whether a transfer
[out of a secure treatment facility] is appropriate: (1) the person’s clinical progress
and present treatment needs; (2) the need for security to accomplish continuing

                                         -3-
or a discharge from commitment.5” Minn. Stat. Ann. § 253D.27. The petition is
“filed with and considered by a panel of the special review board.” Id. These panels
consist of “members experienced in the field of mental illness,” including at least one
“psychiatrist or a doctoral level psychologist with forensic experience” and one
attorney. Minn. Stat. Ann. § 253B.18(4c). The special review board must hold a
hearing and “issue a report with written findings of fact and shall recommend denial
or approval of the petition to the judicial appeal panel.6” Minn. Stat. Ann.
§ 253D.27(3), (4). An appeal of the recommendation of the special review board may
be made by the committed person, the county attorney, or the commissioner of the
Department of Human Services (DHS) to the judicial appeal panel. Minn. Stat. Ann.
§ 253D.28. At a hearing, the judicial appeal panel receives evidence and makes a de


treatment; (3) the need for continued institutionalization; (4) which facility can best
meet the person’s needs; and (5) whether transfer can be accomplished with a
reasonable degree of safety for the public.” Minn. Stat. Ann. § 253D.29(1).
      4
        “The following factors are to be considered in determining whether a
provisional discharge shall be granted: (1) whether the committed person’s course
of treatment and present mental status indicate there is no longer a need for treatment
and supervision in the committed person’s current treatment setting; and (2) whether
the conditions of the provisional discharge plan will provide a reasonable degree of
protection to the public and will enable the committed person to adjust successfully
to the community.” Minn. Stat. Ann. § 253D.30(1).
      5
        “A person who is committed as a sexually dangerous person or a person with
a sexual psychopathic personality shall not be discharged unless it appears to the
satisfaction of the judicial appeal panel, after a hearing and recommendation by a
majority of the special review board, 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. Ann.
§ 253D.31.
      6
      “The Supreme Court shall establish an appeal panel composed of three judges
and four alternate judges appointed from among the acting judges of the state.”
Minn. Stat. Ann. § 253B.19(1).

                                         -4-
novo consideration of the recommendation of the special review board. Id. Appeals
of the decision of the judicial appeal panel may be made to the Minnesota Court of
Appeals. Id.; Minn. Stat. Ann. § 253B.19(5).

       “A committed person may not petition the special review board any sooner than
six months following either” the entry of the initial commitment order by the district
court or appeal therefrom or resolution of a prior petition including exhaustion of any
appeal rights. Minn. Stat. Ann. § 253D.27(2). The MSOP executive director may,
however, petition for reduction in custody at any time. Id.

B. Minnesota Sex Offender Program (MSOP)

       The State of Minnesota established, under the vested authority of the
Commissioner of DHS, the MSOP. Under law, MSOP is to “provide specialized sex
offender assessment, diagnosis, care, treatment, supervision, and other services to
civilly committed sex offenders . . . [which] may include specialized programs at
secure treatment facilities . . . , consultative services, aftercare services,
community-based services and programs, transition services, or other services
consistent with the mission of the Department of Human Services.” Minn. Stat. Ann.
§ 246B.02. MSOP maintains three main facilities to treat persons committed under
MCTA. The largest facility is a secure facility located in Moose Lake, Minnesota,
and it houses persons who are in the earliest stages of treatment. The second, secure
facility is located in St. Peter, Minnesota, and it houses inmates who have progressed
beyond the initial phase of treatment. A third facility known as Community
Preparation Services (CPS) is located outside the secure perimeter in St. Peter. CPS
is designed for persons in the final stages of treatment who are preparing for
reintegration into the community.

      Beginning in 2008, MSOP adopted a three-phase treatment program. Phase I
focuses on rule compliance, emotional regulation, and treatment engagement, but

                                         -5-
individuals do not receive any specific sex offense therapy. In Phase II, MSOP
provides therapy that focuses on identifying and addressing patterns of sexually
abusive behaviors. MSOP emphasizes discussion and exploration of the committed
individual’s history of sexually offensive behaviors along with the motivations of
those behaviors. When a committed person reaches Phase III, MSOP builds on the
skills learned in Phase II and focuses on reintegration into the community.
Advancement through the phases is based on a Goal Matrix where the individual’s
treatment process is scored using various factors. Although the MSOP Treatment
Manual states that a committed person could be initially assigned to any phase of the
program, no MSOP official could recall a person being assigned to anything but
Phase I at the Moose Lake facility.

       The district court found that since its inception in 1994, MSOP has accepted
approximately 714 committed individuals, but no committed individual has been fully
discharged from MSOP and only three people have been provisionally discharged
from the program. The committed individuals represent about 4% of Minnesota’s
registered sex offenders. Minnesota officials project that the number of civilly
committed sex offenders will grow to 1,215 by 2022. Minnesota has the highest per-
capita population of civilly committed sex offenders in the nation.

C. Claims

       In December 2011, plaintiffs filed a pro se suit, pursuant to 42 U.S.C. § 1983,
challenging the conditions of their confinement and certain MSOP policies and
practices. The focus of the initial complaint concerned housing conditions, property
possession, searches, visitation rights, disciplinary procedures, vendor choices,
vocational training, and access to electronic devices. The complaint also claimed that
MSOP did not provide constitutionally adequate treatment and thus violated
plaintiffs’ due process rights. After obtaining counsel in January 2012, plaintiffs filed
a First Amended Complaint raising generally the same claims as in the original

                                          -6-
complaint and seeking class certification.         The district court granted class
certification.

       As litigation progressed, including discovery, the district court, in an effort to
reach a settlement agreement, ordered the DHS commissioner to create a fifteen-
member “Sex Offender Civil Commitment Advisory Task Force” to “examine and
provide recommended legislative proposals to the Commissioner on the following
topics:
       A. The civil commitment and referral process for sex offenders;
       B. Sex offender civil commitment options that are less restrictive than
       placement in a secure treatment facility; and
       C. The standards and processes for the reduction in custody for civilly
       committed sex offenders.”
The court later ordered the creation of a MSOP Program Evaluation Team to evaluate
the class plaintiffs’ treatment placement and phase progression.

       In August 2013, plaintiffs moved for a declaratory judgment finding the MCTA
unconstitutional on its face and as applied to plaintiffs. The plaintiffs argued that the
statute is unconstitutional on its face because the statutory discharge standards are
more difficult to overcome than the initial statutory commitment standards. For a
person to be committed, the state has to show the person is a sexually dangerous
person or a person with a sexual psychopathic personality and that the person is
highly likely to reoffend. However, discharge under MCTA requires a showing that
the person is “no longer dangerous.” In comparison to the commitment criteria, the
plaintiffs argued the discharge standard is more stringent. The plaintiffs also claimed
the statute is unconstitutional as applied because no person committed has ever been
fully discharged from MSOP and because there is no automatic, independent, periodic
review of an individual’s need for continuing commitment. In February 2014, the
court denied plaintiffs’ motion for declaratory judgment and issued detailed



                                          -7-
instructions to the four Rule 706 experts it had appointed to assist the court in
understanding the complexities of the case.7

D. Bench Trial

       The district court proposed hearing the matter in a bench trial. The state
defendants objected, arguing that they had preserved the right to a jury trial. In
response, plaintiffs moved to again amend their complaint to clarify their allegations
and to remove any damages claim from the complaint. The magistrate judge granted
the motion to file the Third Amended Complaint that clearly set forth facial and as
applied claims based on due process violations and removed any damages claim.
Because there were no longer damages claims and plaintiffs were only seeking
injunctive relief, the district court ordered that the case be submitted at a bench trial.

        Phase I of the bench trial occurred from February 9, 2015 to March 18, 2015.
During the six-week trial, the district court heard testimony from all four Rule 706
experts, several named plaintiffs, and MSOP employees and staff. Following the
trial, the district court entered a broad order finding MCTA unconstitutional facially
and as applied. The court held that Minnesota’s civil commitment scheme for sex
offenders is a punitive system without the safeguards found in the criminal justice
system. It also held that MCTA “is not narrowly tailored and results in a punitive
effect and application contrary to the purpose of civil commitment.” Specifically, the
district court concluded:

      section 253D is facially unconstitutional for the following six reasons:
      (1) section 253D indisputably fails to require periodic risk assessments

      7
        Federal Rules of Evidence permit district courts to appoint independent
experts to assist the court understand complex and difficult issues. Fed. R. Evid. 706
(court may “[o]n a party’s motion or on its own” appoint an expert to serve on behalf
of the court).

                                           -8-
      and, as a result, authorizes prolonged commitment even after committed
      individuals no longer pose a danger to the public and need further
      inpatient treatment and supervision for a sexual disorder; (2) section
      253D contains no judicial bypass mechanism and, as such, there is no
      way for Plaintiffs to timely and reasonably access the judicial process
      outside of the statutory discharge process to challenge their ongoing
      commitment; (3) section 253D renders discharge from the MSOP more
      onerous than admission to it because the statutory discharge criteria is
      more stringent than the statutory commitment criteria; (4) section 253D
      authorizes the burden to petition for a reduction in custody to
      impermissibly shift from the state to committed individuals; (5) section
      253D contemplates that less restrictive alternatives are available and
      requires that committed individuals show by clear and convincing
      evidence that a less restrictive alternative is appropriate, when there are
      no less restrictive alternatives available; and (6) section 253D does not
      require the state to take an affirmative action, such as petition for a
      reduction in custody, on behalf of individuals who no longer satisfy the
      criteria for continued commitment.

       The district court also determined MCTA was unconstitutional as applied for
six reasons:

      (1) Defendants do not conduct periodic independent risk assessments or
      otherwise evaluate whether an individual continues to meet the initial
      commitment criteria or the discharge criteria if an individual does not
      file a petition; (2) those risk assessments that have been performed have
      not all been performed in a constitutional manner; (3) individuals have
      remained confined at the MSOP even though they have completed
      treatment or sufficiently reduced their risk; (4) discharge procedures are
      not working properly at the MSOP; (5) although section 253D expressly
      allows the referral of committed individuals to less restrictive
      alternatives, this is not occurring in practice because there are
      insufficient less restrictive alternatives available for transfer and no less
      restrictive alternatives available for initial commitment; and (6) although
      treatment has been made available, the treatment program’s structure has



                                          -9-
      been an institutional failure and there is no meaningful relationship
      between the treatment program and an end to indefinite detention.

       In reaching its conclusions as to both Counts 1 and 2, the facial and as-applied
challenges, the district court applied “strict scrutiny, placing the burden on the state
to show that the law is narrowly tailored to serve a compelling state interest” because
“Plaintiffs’ fundamental right to live free of physical restraint is constrained by the
curtailment of their liberty.” The court noted it would address the remaining claims
in the Third Amended Complaint in a second phase of the trial and in a separate
order.

E. Injunctive Relief

       In a subsequent order, the district court directed MSOP to “conduct
independent risk and phase placement reevaluation of all current patients at MSOP.”
The court provided detailed directions as to how and when the reviews were to be
conducted, including identifying certain individuals to be evaluated first, and directed
MSOP officials to file petitions for reduction in custody for all persons found eligible
for such relief through the reevaluation. Defendants’ compliance with the court’s
directives are to be monitored by a special master who has “authority to monitor
compliance with the remedies” and “authority to implement and enforce the
injunctive relief imposed by the Court and to mediate any dispute between the parties
with regard to the implementation of the remedies.” The order further noted that the
court “contemplates” entering “further specific relief against Defendants” in
subsequent orders, foreseeing directions as to MSOP’s treatment structure and
discharge process, training for MSOP employees, periodic evaluation of MSOP by
external experts, and the development of a statewide public education campaign.

                                          II.

      The state defendants appeal the district court’s entry of declaratory judgment
and the district court’s grant of injunctive relief. First, they allege structural due

                                         -10-
process error based on the district judge’s bias against them. Second, the state
defendants argue three jurisdictional defects. Lastly, the state defendants dispute the
district court’s determinations on the merits, focusing specifically on whether the
district court applied the proper standards of scrutiny to the plaintiffs’ due process
claims. All issues raised by the state defendants concern questions of law, which we
review de novo. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct.
1744, 1748 (2014) (recognizing that questions of law are reviewed under de novo
standard of review).

A. Judicial Bias

        The state defendants claim that the district court pre-judged the case against
them, violating their due process rights to a neutral decisionmaker. In support of this
argument, state defendants first point to various comments made by the district court
that are critical of MSOP and remarks suggesting that state officials should make
drastic changes to the program. For instance, in one order, the district court
concluded with the statement, “The program’s systemic problems will only worsen
as hundreds of additional detainees are driven into MSOP over the next few years.
The politicians of this great State must now ask themselves if they will act to revise
a system that is clearly broken, or stand idly by and do nothing, simply awaiting
Court intervention.” (Doc. 427 at 69 (footnote omitted).) Just prior to the bench trial,
the court denied the state defendants’ motion to dismiss the Third Amended
Complaint and for summary judgment. In that order, it stated, again in conclusion,
“It is difficult for the Court to understand why the parties have not resolved this case
in a manner that would address clients’ concerns, serve the public interest, promote
public safety, and serve the interests of justice for all concerned. Justice requires no
less.” (Doc. 828 at 43.)

      Second, the state defendants argue that the Rule 706 experts were improperly
used by the court to aid the plaintiffs in preparing and presenting their case.

                                         -11-
Although not appealing the court’s appointment of the Rule 706 experts, the state
defendants argue that the court used those experts to prosecute the plaintiffs’ case and
this demonstrates that the court had assumed the mantle of an advocate.

        Third, the state defendants note that the Third Amended Complaint was filed
almost three years after the commencement of the case and matched the court’s
September 9, 2014 order as to the issues the court wished to address in the bench trial.
Again, the state defendants are not challenging the district court’s order allowing the
plaintiffs to file the Third Amended complaint; rather, the state defendants argue that
it was improper for the court to counsel the plaintiffs on the claims it should present
to the court. This Third Amended Complaint also had the effect of forcing a bench
trial as the three previous versions of the complaint contained damages claims but the
Third Amended Complaint only sought equitable relief.

        Finally, the state defendants argue that the district court ordered the creation
of a task force to provide legislative proposals for settlement purposes. The state
defendants claim that the district court’s order providing for the creation of the task
force provided that the report prepared by the task force would not be admissible at
trial, but the court admitted the report at the bench trial and then considered and relied
upon the report in deciding the case. The state defendants also claim the district court
influenced who would be appointed to that task force. This process, the state
defendants claim, also demonstrates improper judicial advocacy.

       The state defendants argue the result of these various district court actions was
obviously biased fact-finding by the court. According to the state defendants, the
court assumed the role of an advocate instead of a neutral magistrate. Based on this
alleged bias, the state defendants request that this court overturn the decisions of the
district court as the bias constitutes a structural error requiring “automatic reversal.”




                                          -12-
        Parties to litigation are “entitled to due process, the essence of which is a fair
trial before a tribunal free from bias or prejudice.” Gardiner v. A.H. Robins Co., 747
F.2d 1180, 1191 (8th Cir. 1984) (citing In re Murchison, 349 U.S. 133, 136-37
(1955)). “Ordinarily, when unfair judicial procedures result in a denial of due
process, this court could simply find error, reverse and remand the matter.” Reserve
Mining Co. v. Lord, 529 F.2d 181, 185 (8th Cir. 1976). In those cases where the
court has found a biased or prejudiced district judge resulted in a due process
violation, the evidence of bias was overwhelming. For instance, in Gardiner, the
district judge “stated that he believed the truth of plaintiffs’ allegations, adding that
he had become an advocate for plaintiffs and that he was, in fact, prejudiced.” 747
F.2d at 1192.

       In this matter, the state defendants point to a handful of remarks made over the
course of months of litigation. These comments do give some cause for concern; if
they are not premature remarks on the merits of the litigation, then they could in some
instances be construed as policy pronouncements that risk straying beyond the
judicial role. We are not convinced, however, that the actions and statements
complained of, individually or collectively, establish that the district court was
biased. Instead, the decisions of the district court in appointing the Rule 706 experts,
allowing for a late amendment to the complaint, and appointing the task force were
arguably done in an effort to streamline the complicated case and attempt to reach an
amicable settlement between the parties.8 Further, unlike cases such as Gardiner,
where one party was not allowed to present their case to the court, the district court
did not prevent the state defendants from presenting their case to the district court in
a six-week bench trial, and the district court gave due consideration to all arguments.
In further proceedings, moreover, we are confident that the district court will be
sensitive to avoiding even the appearance of bias or prejudgment of the merits.


      8
       Neither the class plaintiffs nor the state defendants objected to the creation of
the Task Force.

                                          -13-
B. Jurisdiction

        The state defendants raise three challenges to the jurisdiction of the district
court in this matter. First, the state defendants argue the plaintiffs lacked standing to
challenge MCTA. The state defendants argue the latest version of the complaint
alleges violations of the plaintiffs’ liberty interests, but the plaintiffs have not
identified a named plaintiff or a member of the class who would be entitled to
discharge if reevaluated. Instead, the plaintiffs merely speculate that some of them
or some of the members of the class would be subject to discharge upon completion
of a risk assessment. According to the state defendants, because the alleged harm is
speculative, the plaintiffs have not shown an actual deprivation of their liberty, and
thus they lack standing to bring this action.

       We reject this argument. “Article III establishes three elements as a
constitutional minimum for a party to have standing: (1) ‘an injury in fact,’ meaning
‘the actual or imminent invasion of a concrete and particularized legal interest’; (2) a
causal connection between the alleged injury and the challenged action of the
defendant; and (3) a likelihood that the injury will be redressed by a favorable
decision of the court.” Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 985-
86 (8th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). “This means that, throughout the litigation, the plaintiff ‘must have suffered,
or be threatened with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998)
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). Here, we agree
with the class plaintiffs that they have standing because their claim is not that they are
all entitled to release but rather that their constitutional rights are being violated
because MCTA and MSOP’s implementation of MCTA violates the due process
clause. The class plaintiffs are seeking certain procedural protections such as
periodic reviews of their confinement and placement in appropriate facilities. All
plaintiffs are committed under MCTA and detained in MSOP. Thus, if their

                                          -14-
allegations are true, the plaintiffs have suffered a concrete injury caused by the
challenged action that could be redressed by appropriate injunctive relief.

       Next, the state defendants argue that this action is barred under Heck v.
Humphrey, 512 U.S. 477 (1994), and Preiser v. Rodriguez, 411 U.S. 475 (1973),
because it is an attempt to use 42 U.S.C. § 1983 to challenge the fact or duration of
their confinement and such claims can be brought only in a habeas petition under 28
U.S.C. § 2254. “[A] state prisoner’s claim for damages is not cognizable under 42
U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the
conviction or sentence has previously been invalidated.” Edwards v. Balisok, 520
U.S. 641, 643 (1997) (quoting Heck, 512 U.S. at 487). This action, however, would
not necessarily imply the invalidity of any of the plaintiffs’ commitment. See Huftile
v. Miccio-Fonseca, 410 F.3d 1136, 1140 (9th Cir. 2005) (noting Heck applies to
civilly committed persons as well as prisoners). They do not allege that their initial
commitment was invalid. Nor is it alleged that any specific class members should be
immediately released. Instead, the plaintiffs claim that they should receive relief
including regular, periodic assessment reviews to determine if they continue to meet
the standards for civil commitment. It is conceivable that upon receiving an
assessment none of the plaintiffs would be eligible for release, despite the district
court’s finding otherwise. Because the injunctive relief sought would not necessarily
imply the invalidity of the plaintiffs’ commitment, this action is not barred under
Heck or Preiser.

       Finally, the state defendants challenge the subject matter jurisdiction of the
federal courts under the Rooker-Feldman doctrine. The defendants claim plaintiffs
are seeking through this action to reverse “hundreds” of state-court judgments that
have held MCTA to be constitutional when raised by individual defendants
challenging the application of MCTA to them. “The Rooker-Feldman doctrine is
narrow; it applies only to ‘cases brought by state-court losers complaining of injuries

                                         -15-
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.’”
Edwards v. City of Jonesboro, 645 F.3d 1014, 1018 (8th Cir. 2011) (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). “The doctrine
thus occupies a ‘narrow ground’ and does not ‘stop a district court from exercising
subject-matter jurisdiction simply because a party attempts to litigate in federal court
a matter previously litigated in state court.’” Banks v. Slay, 789 F.3d 919, 922 (8th
Cir. 2015) (quoting Exxon Mobil Corp., 544 U.S. at 284, 293). As previously
discussed, the class plaintiffs are not seeking review and rejection of state court
judgments nor are the plaintiffs claiming to have suffered harm because of prior state
court judgments which have held MCTA constitutional. Through this action,
plaintiffs are seeking prospective injunctive relief based on a theory that the MCTA
violates their fundamental liberty rights. Therefore the narrow Rooker-Feldman bar
does not apply to this action.

C. Standards of Scrutiny

      The district court held that, because the committed individuals have a
fundamental right to liberty, strict scrutiny was the proper standard of scrutiny to
apply to plaintiffs’ facial and as-applied due process claims. The district court
therefore determined MCTA had to be narrowly tailored to achieve a compelling
governmental purpose and that it failed to meet this narrow tailoring both facially and
as applied. We disagree with application of the strict scrutiny standard.

i. Facial Due Process

       The United States Constitution guarantees that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV, § 1. “The Supreme Court has not expressly identified the proper level of
scrutiny to apply when reviewing constitutional challenges to civil commitment

                                          -16-
statutes.” United States v. Timms, 664 F.3d 436, 445 (4th Cir.), cert. denied, 133 S.
Ct. 189 (2012). However, to date, the strict scrutiny standard applied by the district
court is reserved for claims of infringements on “fundamental” liberty interests upon
which the government may not infringe “unless the infringement is narrowly tailored
to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993).
According to the Supreme Court, “fundamental rights and liberties” are those “deeply
rooted in this Nation’s history and tradition and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they were sacrificed.”
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (internal citations and
quotation marks omitted).

       Although the Supreme Court has characterized civil commitment as a
“significant deprivation of liberty,” Addington v. Texas, 441 U.S. 418, 425 (1979),
it has never declared that persons who pose a significant danger to themselves or
others possess a fundamental liberty interest in freedom from physical restraint. See
Foucha v. Louisiana, 504 U.S. 71, 116 (1992) (Thomas, J., dissenting) (criticizing the
majority’s analysis of a due process challenge to a civil commitment statute because,
“[f]irst, the Court never explains whether we are dealing here with a fundamental
right, and . . . [s]econd, the Court never discloses what standard of review applies”).
Rather, when considering the constitutionality of Kansas’s Sexually Violent Predator
Act, the Court stated “[a]lthough freedom from physical restraint ‘has always been
at the core of the liberty protected by the Due Process Clause from arbitrary
governmental action,’ that liberty interest is not absolute.” Kansas v. Hendricks, 521
U.S. 346, 356 (1997) (quoting Foucha, 504 U.S. at 80). The Court noted that many
states provide for the involuntary civil commitment of people who are unable to
control their behavior and pose a threat to public health and safety, and “[i]t thus
cannot be said that the involuntary civil confinement of a limited subclass of
dangerous persons is contrary to our understanding of ordered liberty.” Id. at 357
(citing Addington, 441 U.S. at 426). When considering the due process implications
of a civil commitment case, the Supreme Court stated “[a]t the least, due process

                                         -17-
requires that the nature and duration of commitment bear some reasonable relation
to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S.
715, 738 (1972) (emphasis added).

      Accordingly, the proper standard of scrutiny to be applied to plaintiffs’ facial
due process challenge is whether MCTA bears a rational relationship to a legitimate
government purpose. See id.

ii. As-Applied Due Process

      When it considered the proper standard to apply, the district court stated
substantive due process protected against two types of government action: action that
shocks the conscience or action that interferes with rights implicit in the concept of
ordered liberty. The district court then proceeded to discuss how the state defendants’
actions interfered with the class plaintiffs’ liberty interests to be free from restraint
and thus was subject to a strict scrutiny analysis. The district court applied the
improper standard to consider an as-applied challenge when it determined there were
two types of government action that could violate the class plaintiffs’ substantive due
process rights.

       Following the Supreme Court’s decision in County of Sacramento v. Lewis,
523 U.S. 833 (1998), this court held to prevail on an as-applied due process claim,
that the state defendants’ actions violated the plaintiffs’ substantive due process
rights, the plaintiffs “must demonstrate both that the [state defendants’] conduct was
conscience-shocking, and that the [state defendants] violated one or more
fundamental rights that are ‘deeply rooted in this Nation's history and tradition, and
implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed.’” Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002)
(en banc) (Bye, J., concurring and writing for a majority on this issue) (emphasis in
original) (quoting Glucksberg, 521 U.S. at 720-21 (1997)). The district court, citing

                                          -18-
to a pre-Lewis decision of United States v. Salerno, 481 U.S. 739, 746 (1987), used
the former disjunctive standard and focused only on whether there was a fundamental
right at issue, and having determined that there was a fundamental right at issue, the
district court applied a strict scrutiny test to both the facial and as-applied challenges.

        As indicated above, however, the court should determine both whether the state
defendants’ actions were conscience-shocking and if those actions violated a
fundamental liberty interest. To determine if the actions were conscience-shocking,
the district court should consider whether the state defendants’ actions were
“egregious or outrageous.” See Montin v. Gibson, 718 F.3d 752, 755 (8th Cir. 2013)
(quoting Burton v. Richmond, 370 F.3d 723, 729 (8th Cir. 2004)). To meet this high
standard, we have explained that the alleged substantive due process violations must
involve conduct “so severe . . . so disproportionate to the need presented, and . . . so
inspired by malice or sadism rather than a merely careless or unwise excess of zeal
that it amounted to a brutal and inhumane abuse of official power literally shocking
to the conscience.” Moran, 296 F.3d at 647 (quoting In re Scott Cnty. Master Docket,
672 F. Supp. 1152, 1166 (D. Minn. 1987)). Accordingly, the district court applied
an incorrect standard in considering the class plaintiffs’ as-applied substantive due
process claims.

D. Substantive Due Process

i. Facial Challenge

       The district court announced six grounds upon which MCTA was facially
unconstitutional under the strict scrutiny standard—(1) MCTA did not require
periodic risk assessments of all committed persons, (2) MCTA did not provide for a
judicial bypass mechanism, (3) MCTA rendered discharge from MSOP more onerous
than admission because discharge criteria was more stringent than admission criteria,
(4) MCTA impermissibly shifted the burden to petition for a reduction in custody to

                                           -19-
the committed person, (5) MCTA did not provide less restrictive alternatives although
the statute indicated such would be available, and (6) MCTA did not require state
officials to petition for a reduction in custody on behalf of committed individuals who
might qualify for a reduction. As we held above, the appropriate standard is whether
MCTA bears a reasonable relationship to a legitimate government purpose. To
prevail in a facial challenge, the class plaintiffs bear the burden of “establish[ing] that
no set of circumstances exists under which [MCTA] would be valid.” See United
States v. Salerno, 481 U.S. 739, 745 (1987). None of the six reasons the district court
found MCTA facially unconstitutional under the strict scrutiny review survives the
reasonable relationship review.

       Reasonable relationship review is highly deferential to the legislature. No one
can reasonably dispute that Minnesota has a real, legitimate interest in protecting its
citizens from harm caused by sexually dangerous persons or persons who have a
sexual psychopathic personality. See Addington, 441 U.S. at 426 (“[T]he state . . .
has authority under its police power to protect the community from the dangerous
tendencies of some who are mentally ill.”). The question then is whether MCTA is
reasonably related to this interest. The burden to prove the statute is not rationally
related to a legitimate government interest is borne by the class plaintiffs, whereas the
burden to show that a statute is narrowly tailored to serve a compelling government
interest is borne by the state. See FCC v. Beach Comm’ns, Inc., 508 U.S. 307, 314-
15 (1993) (“On rational-basis review, . . . those attacking the rationality of the
legislative classification have the burden ‘to negate every conceivable basis which
might support it.’” (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356,
364 (1973)); Republican Party of Minn. v. White, 416 F.3d 738, 749 (8th Cir. 2005)
(“The strict scrutiny test requires the state to show that the law that burdens the
protected right advances a compelling state interest and is narrowly tailored to serve
that interest.” (citations omitted)).




                                           -20-
       The Minnesota Supreme Court has had opportunity to consider whether the
then-applicable Minnesota commitment statute violated due process. In In re
Blodgett, 510 N.W.2d 910, 916 (Minn. 1994), that court held, “[s]o long as civil
commitment is programmed to provide treatment and periodic review, due process
is provided. Minnesota’s commitment system provides for periodic review and
reevaluation of the need for continued confinement.” The next year, the Minnesota
Supreme Court heard Call v. Gomez, 535 N.W.2d 312 (Minn. 1995), and considered
a due process challenge to MCTA. Referring back to Blodgett, the court held, “once
a person is committed, his or her due process rights are protected through procedural
safeguards that include periodic review and re-evaluation, the opportunity to petition
for transfer to an open hospital, the opportunity to petition for full discharge, and the
right to competent medical care and treatment.” Id. at 318-19.

       MCTA is facially constitutional because it is rationally related to Minnesota’s
legitimate interests. The district court expressed concerns about the lack of periodic
risk assessments, the availability of less restrictive alternatives, and the processes for
seeking a custody reduction or a release. MCTA provides “proper procedures and
evidentiary standards” for a committed person to petition for a reduction in his
custody or his release from confinement. See Hendricks, 521 U.S. at 357. Any
committed person can file a petition for reduction in custody. Minn. Stat. Ann.
§ 253D.27(2). The petition is considered by a special review board consisting of
experts in mental illness and at least one attorney. Minn. Stat. Ann. § 253B.18(4c)(a).
That panel conducts a hearing and issues a report with recommendations to a judicial
appeal panel consisting of Minnesota district judges appointed to the judicial appeal
panel by the Chief Justice of the Supreme Court. Minn. Stat. Ann. §§ 253D.27(3)-(4),
253B.19(1). Through this process, the committed person “has the right to be
represented by counsel” and the court “shall appoint a qualified attorney to represent
the committed person if neither the committed person nor other provide counsel.”
Minn. Stat. Ann. § 253D.20. Appeal of the decision of the special judicial panel may
be taken the Minnesota Court of Appeals. Minn. Stat. Ann. §§ 253D.28, 253B.19(5).

                                          -21-
Finally, a committed person is entitled to initiate a new petition six months after the
prior petition is concluded. Minn. Stat. Ann. § 253D.27(2).

       We conclude that this extensive process and the protections to persons
committed under MCTA are rationally related to the State’s legitimate interest of
protecting its citizens from sexually dangerous persons or persons who have a sexual
psychopathic personality. Those protections allow committed individuals to petition
for a reduction in custody, including release; therefore, the statute is facially
constitutional.

ii. As-Applied Challenge

       We agree with the state defendants that much of the district court’s “as-
applied” analysis is not a consideration of the application of MCTA to the class
plaintiffs but is a criticism of the statutory scheme itself. For instance, the court
found that the statute was unconstitutional as applied to the plaintiffs because the
state defendants do not conduct periodic risk assessments. However, the class
plaintiffs acknowledge that MCTA does not require periodic risk assessments but
those assessments are performed whenever a committed person seeks a reduction in
custody. The district court also found as-applied violations in aspects of the
treatment received by the committed persons, specifically concluding that the
treatment program’s structure has been an “institutional failure” and lacks a
meaningful relationship between the program and an end to indefinite detention.
However, we have previously held that although “the Supreme Court has recognized
a substantive due process right to reasonably safe custodial conditions, [it has not
recognized] a broader due process right to appropriate or effective or reasonable
treatment of the illness or disability that triggered the patient’s involuntary
confinement.” See Strutton v. Meade, 668 F.3d 549, 557 (8th Cir. 2012) (alteration
in original) (quoting Elizabeth M. v. Montenez, 458 F.3d 779, 788 (8th Cir. 2006)).
Further, as the Supreme Court recognized, the Constitution does not prevent “a State

                                         -22-
from civilly detaining those for whom no treatment is available.” Hendricks, 521
U.S. at 366. Nevertheless, as discussed previously, to maintain an as-applied due
process challenge, the class plaintiffs have the burden of showing the state actors’
actions were conscience-shocking and violate a fundamental liberty interest. See
Moran, 296 F.3d at 651.

      None of the six grounds upon which the district court determined the state
defendants violated the class plaintiffs’ substantive due process rights in an as-
applied context satisfy the conscience-shocking standard. Having reviewed these
grounds and the record on appeal, we conclude that the class plaintiffs have failed to
demonstrate that any of the identified actions of the state defendants or arguable
shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to
meet the conscience-shocking standard. Accordingly, we deny the claims of an as-
applied due process violation.

                                          III.

      Accordingly, we reverse the district court’s finding of a constitutional violation
and vacate the injunctive order. We remand this matter to the district court for further
proceedings on the remaining claims in the Third Amended Complaint.
                        ______________________________




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