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In the Matter of the Risk Level Determination of J. V.: CIVIL COMMITMENT | CRIMINAL PROCEEDURE - risk review request moot on civil commitmt not subject to community notification

STATE OF MINNESOTA
IN COURT OF APPEALS
A06-2286
In the Matter of the Risk Level Determination of J.V.
Filed November 27, 2007
Affirmed
Dietzen, Judge
Minnesota Department of Corrections
Agency File No. 4-1100-17354-2
John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender,
2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for relator J.V.)
Lori Swanson, Attorney General, Angela Helseth Kiese, Assistant Attorney General, 445
1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Minnesota
Department of Corrections)
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and
Halbrooks, Judge .
S Y L L A B U S
The request of a predatory offender for administrative review of an end-ofconfinement
risk-level determination under Minn. Stat. 244.052, subd. 6, is moot when
the offender is civilly committed to a residential facility and not subject to community
notification and, therefore, lacks the requisite personal interest in the outcome of the
litigation.
2
O P I N I O N
DIETZEN, Judge
In this certiorari proceeding, relator challenges an administrative law judges
(ALJ) order dismissing his request for administrative review of his risk-level assessment
under Minn. Stat. 244.052, arguing that his right to review is unconditional and
absolute. Because we conclude that the ALJ did not err in concluding that relators
request for administrative review was moot, we affirm.
FACTS
In July 2001, relator was convicted of fourth-degree criminal sexual conduct and
the district court sentenced him to 33 months in prison. Over the next two years, relator
was released from prison subject to conditions on two occasions, but he was later arrested
for violating the conditions and was reincarcerated. In November 2003, the department
of corrections end-of-confinement review committee (ECRC) assigned J.V. a risk level
III. J.V. filed a request for administrative review of the ECRC decision.
In January 2004, relator was conditionally released from the Minnesota
Correctional Facility-Lino Lakes (MCF-LL), but was then civilly committed to the
Minnesota Sex Offender Program (MSOP) and transferred to the Minnesota Security
Hospital-St. Peter (MSH-St. Peter). Relator then requested that the ECRC proceed with a
hearing on his request for administrative review of his risk-level determination.
During his civil commitment, relator was subject to conditions of release from
prison, but he violated a condition and was returned to MCF-LL to complete his sentence.
3
When his sentence expired in February 2007, he was returned to MSH-St. Peter under the
civil commitment order. In August 2006, respondent moved to dismiss J.V.s request for
administrative review of the risk-level determination as moot. Following the submission
of written arguments, the ALJ dismissed the request for review on the ground of
mootness. This certiorari appeal follows.
ISSUE
Did the ALJ err as a matter of law in concluding that relators request for
administrative review under Minn. Stat. 244.052, subd. 6, is moot?
ANALYSIS
Relator argues that the ALJ erred in concluding that his request for administrative
review under Minn. Stat. 244.052 of the ECRC risk-level determination is moot. The
issue of whether a cause of action is moot is a question of law, which we review de novo.
Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376 (Minn. App. 2004), review denied
(Minn. Apr. 4, 2005); see Frost-Benco Elec. Assn v. Minn. Pub. Utils. Commn, 358
N.W.2d 639, 642 (Minn. 1984) (reviewing court need not defer to agency decisions or
expertise when reviewing agencys legal determinations).
A. Applicability of Mootness Doctrine
Relator argues that the doctrine of mootness does not apply to a request for
administrative review under the statute. This case arises under the community
notification act (CNA), Minn. Stat. 244.052 (2006), which protects communities from
predatory offenders by requiring law enforcement to provide notice of an offenders
presence in a community. Minn. Stat. 244.052, subd. 4. The statute provides that an
4
offender has the right to seek administrative review of an end-of-confinement review
committees risk assessment determination, which includes the right to a review hearing.
Id., subd. 6. It is well established that the doctrine of mootness applies to judicial
proceedings in Minnesota. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005). Minn.
Stat. 244.052, subd. 6(d), provides that [t]he review hearing is subject to the contested
case provisions of chapter 14. Under the rules adopted in accordance with chapter 14,
an ALJ shall recommend dismissal where the case or any part thereof has become
moot. Minn. R. 1400.5500(k) (2005). Thus, the doctrine of mootness applicable to
judicial proceedings is equally applicable to review hearings conducted under Minn. Stat.
244.052, subd. 6.
B. Mootness Requires Direct and Personal Harm
Relator argues that he will suffer direct and personal harm if the risk-level
determination is not reviewed. Thus, relator argues that his appeal is not moot.
A court should exercise its jurisdiction to decide a matter only if there is a
justiciable controversy. See Kahn, 701 N.W.2d at 821. A controversy is justiciable if it
involves definite and concrete assertions of right. Id. Merely possible or hypothetical
injury will not satisfy this standard. Id. A matter may be dismissed as moot if an event
occurs that resolves the issue or renders it impossible for the court to grant effectual
relief. Isaacs, 690 N.W.2d at 376.
Mootness can be described as the doctrine of standing set in a time frame: the
requisite personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness). Kahn, 701 N.W.2d at 821
5
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
189, 120 S. Ct. 693, 708-09 (2000)). To show a personal interest, a party must
demonstrate a direct and personal harm. Nordvick v. Commr of Pub. Safety, 610
N.W.2d 659, 662 (Minn. App. 2000). If a party lacks the requisite personal interest and
the court is unable to grant effectual relief, the issue raised is deemed to be moot and
may be dismissed. Kahn, 701 N.W.2d at 821.
Relator argues that during his civil commitment, he is subject to community
notification under Minn. Stat. 244.052, subd. 4, and, therefore, his request for review is
not moot. Respondent arguedand the ALJ agreedthat because MSH-St. Peter is a
residential facility under Minn. Stat. 244.052, subd. 1(4), community notification is
prohibited, and, therefore, relator will suffer no harm arising out of his risk-level
determination. We agree.
The interpretation of a statute is a question of law, which we review de novo.
Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
When interpreting a statute, we give words their plain and ordinary meaning. Minn. Stat.
645.08, subd. 1 (2006); All Metro Supply, Inc. v. Warner, 707 N.W.2d 1, 5 (Minn. App.
2005).
Minn. Stat. 244.052, subd. 4(b)(3), provides that law enforcement agencies shall
not make any disclosure about the offender if the offender is placed or resides in a
residential facility, A residential facility is a facility that is licensed as a residential
program under section 245A.02, subd. 14. Id., subd. 1(4). Section 245A.02, subd. 14,
defines a residential program as a program that provides 24-hour-a-day care,
6
supervision, food, lodging, rehabilitation, training, education, habilitation, or treatment
outside a persons own home. Minn. Stat. 245A.02, subd. 14 (2006). All residential
programs are required to be licensed by the commissioner of human services, unless
exempted by statute. Minn. Stat. 245A.03 (2006). We conclude that the sex-offender
program at MSH-St. Peter meets the definition of a residential program. MSH-St.
Peter provides 24-hour-a-day care for those committed to the sex-offender program; the
residents are supervised; the program provides food and lodging; and the focus of the
program is on rehabilitating, training, habilitating, and treating sex offenders.
Relator suggests that because MSH-St. Peter is defined as a secure treatment
facility, it cannot also be a residential facility. See Minn. Stat. 253B.02, subd. 18a
(2006) (secure treatment facility means the Minnesota Security Hospital and its sexoffender
program). We disagree for several reasons. First, we see nothing in that statute
that precludes MSH-St. Peter from satisfying both statutory definitions. More
importantly, MSH-St. Peter clearly provides a residential program to its residents and,
therefore, meets the definition of a residential facility. Because MSH-St. Peter meets the
definition of a residential facility under Minn. Stat. 244.052, subd. 1(4), community
notification is prohibited by Minn. Stat. 244.052, subd. 4(b)(3).
Relator argues that even if community notification is prohibited under the statute,
he will suffer other harm arising from the risk-level assessment. But relator failed to
make this argument before the ALJ. We decline to address matters raised for the first
time on appeal. E.N. v. Special Sch. Dist. No. 1, 603 N.W.2d 344, 348 (Minn. App.
1999). But even if we did reach this issue, we would conclude that relators argument is
7
speculative and without merit. Relator has failed to establish any personal harm arising
out of his risk-level determination. See Isaacs, 690 N.W.2d at 376 (the doctrine of
mootness looks towards actual occurrences, not mere speculation on events that could
have happened).
C. Capability of Repetition
Relator next argues that even if his request for administrative review is moot, the
determination is capable of repetition and likely to evade review. Generally, a case
should not be dismissed on the ground of mootness if it implicates issues that are capable
of repetition, yet evading review. Kahn, 701 N.W.2d at 821. But absent certification as a
class action, this only applies to the situation where two elements are combined: (1) the
challenged action was in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the same complaining party
would be subjected to the same action again. Id. (quoting Weinstein v. Bradford, 423
U.S. 147, 149, 96 S. Ct. 347, 349 (1975)).
Prior to his release from MSH-St. Peter, relator will have a new ECRC risk level
determination that will trigger his right to request administrative review under the statute.
Minn. Stat. 244.052, subds. 1(1), 3. Thus, the ALJ correctly concluded that relator
failed to establish a reasonable expectation that the next determination would evade
administrative review.
D E C I S I O N
Under Minn. Stat. 244.052, subd. 6, relators request for administrative review
of an end-of-confinement risk-level determination is moot because he is civilly
8
committed and not subject to community notification and, therefore, lacks the requisite
personal interest in the outcome of the litigation. Consequently, the ALJ did not err in
dismissing his request for administrative review.
Affirmed.
 

 
 
 

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