                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1625

                                 Peter Gerard Lonergan,
                                       Appellant,

                                           vs.

                  Emily Johnson Piper, Commissioner of Human Services,
                                       Respondent.

                                Filed February 22, 2016
                                       Affirmed
                                     Larkin, Judge

                              Dakota County District Court
                               File No. 19-P1-06-008179


David A. Jaehne, West St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Stephanie Hilstrom, Assistant Attorney General, St. Paul,
Minnesota; and

James C. Backstrom, Dakota County Attorney, Donald E. Bruce, Assistant County
Attorney, Hastings, Minnesota (for respondent)



      Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Chutich, Judge.
                          UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges the judicial appeal panel’s order dismissing and denying his

petition for discharge or provisional discharge from civil commitment as a sexually

dangerous person. Because appellant failed to introduce competent evidence suggesting

that he meets the statutory criteria for that relief, we affirm.

                                            FACTS

       Appellant Peter Lonergan was indeterminately committed as a sexually dangerous

person in May 2009 and has been placed in the Minnesota Sex Offender Program (the

MSOP) in Moose Lake. In May 2013, Lonergan petitioned the special review board for a

transfer to Community Preparation Services (CPS), a provisional discharge from civil

commitment, or a full discharge. The special review board conducted a hearing and

recommended denying Lonergan’s requests. As to Lonergan’s request for a provisional

discharge, the special review board stated:

              Mr. Lonergan’s current course of treatment and present mental
              status require continued commitment and supervision at his
              current treatment setting. Furthermore, there has been no
              competent Provisional Discharge Plan presented, and any
              provisional discharge at this time would present a substantial
              risk to the public.

       Lonergan requested reconsideration by the judicial appeal panel, but withdrew his

request for a transfer to CPS. The judicial appeal panel appointed Thomas Alberg, Ph.D.,

to examine Lonergan. The judicial appeal panel held a hearing and received 25 stipulated

exhibits, including Dr. Alberg’s report regarding his examination of Lonergan. During



                                               2
Lonergan’s testimony, his attorney asked him about treatment options outside the MSOP

and where he would live if he was accepted into another treatment program. The assistant

attorney general objected to that line of questioning, arguing that no evidence regarding a

provisional discharge plan had been presented to the special review board. The judicial

appeal panel sustained the objection, stating, “There being no evidence that [a provisional

discharge plan] was presented to the special review board, the statute does prohibit us from

considering this.”

       After Lonergan presented his case, respondent Commissioner of Human Services

moved to dismiss Lonergan’s petition under Minn. R. Civ. P. 41.02(b) and Minn. Stat.

§ 253D.28, subd. 2(d)-(e) (Supp. 2015).          The judicial appeal panel granted the

commissioner’s motion and denied Lonergan’s request for full or provisional discharge,

explaining that:

              Viewing the evidence in the light most favorable to
              [Lonergan], he has failed to provide any competent evidence
              that there is no longer a need for treatment and supervision in
              a secure facility. Additionally, [Lonergan] has not presented
              any competent evidence that he has a provisional discharge
              plan with provisions that will provide a reasonable degree of
              protection to the public and enable him to adjust successfully
              to the community.

       Lonergan appeals.

                                     DECISION

       Lonergan challenges the judicial appeal panel’s dismissal and denial of his petition

for discharge or provisional discharge. “When a judicial appeal panel dismisses a civil-




                                             3
commitment discharge petition under Minn. R. Civ. P. 41.02(b), the standard of review is

de novo.” Larson v. Jesson, 847 N.W.2d 531, 532-33 (Minn. App. 2014).

       A person who is committed as a sexually dangerous person may petition the special

review board for a discharge or provisional discharge from commitment. Minn. Stat. §

253D.27, subd. 2 (2014). If the special review board recommends denying the petition,

the person may ask the judicial appeal panel to reconsider the special review board’s

recommendation. Larson, 847 N.W.2d at 534. The petitioner “bears the burden of going

forward with the evidence, which means presenting a prima facie case with competent

evidence to show that the person is entitled to the requested relief.” Minn. Stat. § 253D.28,

subd. 2(d). “If the petitioning party has met this burden, the party opposing discharge or

provisional discharge bears the burden of proof by clear and convincing evidence that the

discharge or provisional discharge should be denied.” Id.

       “A person who is committed as a sexually dangerous person . . . shall not be

provisionally discharged unless the committed person is capable of making an acceptable

adjustment to open society.” Minn. Stat. § 253D.30, subd. 1(a) (2014). In making that

determination, the following factors must be considered:

              (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.

Id., subd. 1(b) (2014).



                                             4
       “After the [petitioner] has completed the presentation of evidence, the commissioner

may move to dismiss the petition under Minn. R. Civ. P. 41.02(b).”1 Larson, 847 N.W.2d

at 535. When considering a rule 41.02(b) dismissal motion, the judicial appeal panel “may

not weigh the evidence or make credibility determinations” and must “view the evidence

. . . in a light most favorable to the committed person.” Id. (quotations omitted). Dismissal

under Minn. R. Civ. P. 41.02(b) may be appropriate if the committed person does not meet

his burden of production. Id. If a petitioner fails to produce evidence that would entitle

him to a provisional discharge, he also fails to produce evidence that would entitle him to

a complete discharge. See Minn. Stat. § 253D.31 (2014) (setting forth the criteria for

discharge from commitment as a sexually dangerous person); Larson, 847 N.W.2d at 535

(noting that “the criteria for a provisional discharge are more lenient than the criteria for a

discharge”).

       “[A] provisional discharge plan is a necessary step before the judicial appeal panel

could even begin to consider a provisional discharge.” Larson, 847 N.W.2d at 536. “A

provisional discharge plan shall be developed, implemented, and monitored by the

executive director [of MSOP] in conjunction with the committed person and other

appropriate persons.” Minn. Stat. § 253D.30, subd. 2 (2014). Lonergan argues that he

“may or may not have presented a provisional discharge plan to the [special review] board,

but he tried to do so for the judicial appeal panel.” But Lonergan’s proffer to the judicial


1
  The relevant portion of the rule provides, “After the plaintiff has completed the
presentation of evidence, the defendant, without waiving the right to offer evidence in the
event the motion is not granted, may move for a dismissal on the ground that upon the facts
and the law, the plaintiff has shown no right to relief.” Minn. R. Civ. P. 41.02(b).

                                              5
appeal panel did not suggest that he had a provisional discharge plan that complied with

the statutory requirements. Lonergan told the panel, “There was not an approved plan by

the MSOP but we did have a prevention plan.”

         The judicial appeal panel properly refused Lonergan’s evidence regarding his

purported provisional discharge plan because he did not present that evidence to the special

review board and because the judicial appeal panel “may not grant a transfer or provisional

discharge on terms or conditions that were not presented to the special review board.”

Minn. Stat. § 253D.28, subd. 3 (2014). Lonergan argues that the judicial appeal panel

nonetheless should have considered his plan because section 253D.28 is inconsistent with

this court’s remand instructions in Coker v. Ludeman, 775 N.W.2d 660 (Minn. App. 2009),

review dismissed (Minn. Feb. 24, 2010).

         In Coker, this court determined that the judicial appeal panel imposed too high of a

burden on the petitioner and therefore reversed and remanded the case for a new hearing.

775 N.W.2d at 665. We stated that, on remand, “the appeal panel may consider all evidence

relevant to the relief requested and is not limited to the record from the previous proceeding

and/or hearing before the appeal panel.” Id. Lonergan quotes that language and argues

that the judicial appeal panel in this case should have accepted and considered evidence

regarding his provisional discharge plan, even if it was not presented to the special review

board.

         Assuming that the relevant language in Coker could apply in this case, we reject

Lonergan’s argument. The language in Coker states that, on remand in that case, that

appeal panel “may” consider relevant evidence not previously presented in that proceeding.


                                              6
Id. (emphasis added). The Coker remand language did not require consideration of

previously unpresented evidence. Further, Coker was decided under an earlier statute

regarding judicial appeal panels. See id. at 660 (applying 2008 version of Minn. Stat. §

253B.19, subd. 2(d)). And the current statute states that “[t]he judicial appeal panel may

not grant a transfer or provisional discharge on terms or conditions that were not presented

to the special review board.” Minn. Stat. § 253D.28, subd. 3. Moreover, because Coker

did not address the impact of the predecessor statute on its remand instructions, Coker is

not binding here. See Skelly Oil Co. v. Comm’r of Taxation, 269 Minn. 351, 371, 131

N.W.2d 632, 645 (1964) (stating that “the language used in an opinion must be read in light

of the issues presented” (quotation omitted)).

       Because section 253D.28, subdivision 3, prohibits the judicial appeal panel from

granting a provisional discharge based on terms or conditions that were not presented to

the special review board, the judicial appeal panel did not err by refusing to consider

Lonergan’s proffered evidence of his purported provisional discharge plan. See Minn. Stat.

§ 253D.28, subd. 3. And without a provisional discharge plan, the judicial appeal panel

could not conclude that Lonergan is capable of making an acceptable adjustment to open

society or grant a provisional discharge. See Minn. Stat. § 253D.30, subd. 1 (2014).

       Lonergan also had the burden to produce competent evidence that he no longer

needs treatment and supervision in his current treatment setting.         See Minn. Stat.

§§ 253D.28, subd. 2(d); .30, subd. 1(b). He suggests that Dr. Alberg’s testimony satisfies

his burden of production, relying on Dr. Alberg’s opinion that Lonergan is a “moderate”

risk based on one assessment (Static-99R) and is in the “highest risk category” with a


                                             7
“recidivism rate of 100 percent” based on another assessment (SORAG). Dr. Alberg

opined that the first assessment “may be more realistic,” but he noted that the result was

“still a moderate risk.” Lonergan asserts that he “needs a high risk to be committed,” but

he does not cite authority to support that assertion. Regardless, the fact that Lonergan was

deemed a “moderate risk” under one assessment is not evidence that he no longer needs

treatment and supervision in his current treatment setting.

       Lonergan also notes that Dr. Alberg “wondered if there might be another place

[Lonergan] could receive treatment.” Dr. Alberg’s testimony was as follows:

              Q.     So one of the factors that you have to look at when
              considering provisional discharge is whether the individual’s
              course of treatment and their present mental status indicate that
              there’s no longer a need for treatment and supervision in the
              current treatment setting. Did you consider that factor at all in
              your analysis?
              A.     Yeah. I think [Lonergan] still needs treatment.
              Q.     And do you think he still needs treatment in the setting
              he’s in?
              A.     I mean I suppose there’s a question is there another
              setting that he can receive the treatment in. Maybe but I’m not
              aware of what it would be.

That testimony does not indicate that Lonergan no longer needs treatment and supervision

in his current treatment setting. In fact, Dr. Alberg testified that Lonergan was not

appropriate for discharge or provisional discharge at the time of the hearing.

       In sum, Lonergan did not produce competent evidence that he no longer needs

treatment and supervision in his current treatment setting or that he has a provisional

discharge plan that will provide a reasonable degree of protection to the public and enable

him to adjust successfully to the community. Thus, there was no factual basis on which to



                                             8
grant a provisional discharge, much less a discharge. See Larson, 847 N.W.2d at 535. The

judicial appeal panel therefore did not err by dismissing and denying Lonergan’s petition.

      Affirmed.




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