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Semler v. Klang:

STATE OF MINNESOTA
IN COURT OF APPEALS
A06-1852
Raymond L. Semler,
Appellant,
vs.
Erick Klang, Crow Wing County Sheriff,
Respondent,
Rick Koop, Chief Investigator for
Crosby Police Department, et al.,
Respondents.
Filed December 18, 2007
Affirmed
Huspeni, Judge*
Crow Wing County District Court
File No. C2-05-3067
Raymond L. Semler, Moose Lake Annex, 1111 Highway 73, #206261, Moose Lake, MN
55767 (pro se appellant)
Kristy A. Saum, James R. Andreen, Erstad & Riemer, P.A., 200 Riverview Office Tower,
8009 34th Avenue South, Minneapolis, MN 55431 (for respondent Erick Klang)
Jon K. Iverson, Jason M. Hiveley, Iverson Reuvers, LLC, 9321 Ensign Avenue South,
Bloomington, MN 55438 (for respondents Rick Koop, John A. Bolduc, and Kyle Huber)
Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Huspeni,
Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, 10.
2
S Y L L A B U S
Minn. Stat. 244.052, subd. 7(c) (2006), does not preclude official immunity for
law enforcement agencies and officers who disclose information about a sex offender that
is not consistent with the offenders conviction history.
O P I N I O N
HUSPENI, Judge
Respondents Kyle Huber (the Staples police chief), Rick Koop (the Crosby police
department chief investigator), John Bolduc (the Brainerd police chief), and Erick Klang
(the Crow Wing county sheriff), acting under Minn. Stat. 244.052 (2000) and Minn.
Stat. 244.052 (2002), notified communities about the presence of appellant Raymond
Semler, a risk level II sex offender. Appellant brought this action against them, alleging
that the community notifications violated his rights and constituted slander and
defamation. The claims against Huber, Koop, and Bolduc were dismissed on the ground
of official immunity, and the claims against Klang were dismissed on the grounds of
improper service and expiration of the statute of limitations. Appellant challenges the
dismissals.
FACTS
Appellant Raymond Semler was born in January 1976. In 1989, he assaulted a 14-
year-old girl, but no conviction resulted. In 1993, he assaulted and raped a 17-year-old
girl, but again, no conviction resulted. In 1997, he was convicted of criminal sexual
conduct in the fourth degree and of kidnapping after assaulting an adult woman. He was
3
placed on probation. In July 2000, his probation was revoked and he was confined to the
correctional facility at Moose Lake.
Prior to appellants release, the end-of-confinement review committee (ECRC)
categorized him as a risk level II sex offender. Appellants risk assessment report said he
has a definite pattern of harassing females and that the juvenile investigations
occurred but there were no charges or convictions.
Appellant was released on December 31, 2001. In January 2002, the Deerwood
Police Department notified the public of appellants release. The notice stated that
appellant has a history of forced sexual contact with females (ranging in age from 14 to
adult). The contact includes fondling and penetration. The offender uses physical force
to gain compliance. The offender was unknown to the victims. The Deerwood police
department again provided this notice to the public in December 2002, when appellant
was released after having been incarcerated following the August 2002 revocation of his
probation. The Crow Wing county sheriffs department provided the same notice to the
public in June 2003, when appellant was released after having been incarcerated in
February 2003, following another probation revocation. The Brainerd police department
provided the notice to the public when appellant changed his address in July 2003, and
the Staples police department provided it when he again changed his address in August
2003.1
1 Appellant has since been indeterminately committed as a sexually dangerous person
(SDP). See In re Civil Commitment of Semler, No. A06-2213, 2007 WL 969081, at *3
(Minn. App. Apr. 3, 2007) (concluding that appellant engaged in a course of harmful
sexual conduct and upholding his commitment as SDP), review denied (Minn. May 30,
4
In November 2005, acting pro se, appellant brought this action against
respondents, alleging that the community notification violated his rights and constituted
slander and defamation.
The district court dismissed appellants claims against Huber, Koop, and Bolduc
after determining that they erred in disclosing information inconsistent with offenders
conviction history under Minn. Stat. 244.052 subd. 7(c) (2006), but that they were
entitled to official immunity because they did not engage in willful or malicious
disclosures to injure [appellants] reputation, and disclosed that information, which in
their discretion, allowed them to protect the public. The district court subsequently
dismissed appellants claims against Klang after determining that appellant had failed to
serve Klang, and that the statute of limitations had run on all claims made by appellant
against Klang. Appellant now challenges dismissal of all claims.
ISSUES
1. Does Minn. Stat. 244.052, subd. 7(c) (2006), preclude official immunity for
officers who disclose information about a sex offender that is not consistent with
the offenders conviction history?
2. Does Minn. Stat. 541.06 (2006) apply to police officers?
3. Does unacknowledged service by mail confer jurisdiction?
4. Does Minn. Stat. 541.06 preclude an action against a sheriff if more than three
years have passed since the act complained of?
2007). We note that appellants motion to strike references to Semler from the record
was denied in this courts order dated June 8, 2007.
5
ANALYSIS
1. Official immunity of respondents Huber, Koop, and Bolduc
The application of official immunity is a question of law, which we review
de novo. Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn. 2006).
Appellant was a risk level II sex offender. He alleges that Koops offense
occurred prior to December 31, 2001, and that Bolducs and Hubers offenses occurred in
July 2003 and August 2003, respectively. At these times, disclosure to the public of
information on sex offenders of various risk levels was governed by Minn. Stat.
244.052 (2000) and Minn. Stat. 244.052 (2002).2 Understanding the relevant
subdivisions in their context requires a comprehensive review of the statute.
Subdivision 1(2) defines law enforcement agency as the law enforcement
agency having primary jurisdiction over the location where the offender expects to reside
upon release. Subdivision 2 directs the commissioner of corrections to develop a risk
assessment scale that specifies the risk level to which offenders with various risk
assessment scores shall be assigned.
Subdivision 3(a) provides for the establishment of an end-of-confinement review
committee at each state correctional facility. Subdivision 3(c) provides that the
committee shall have access to an offenders private medical data, private and
confidential court services data, private and confidential corrections data, and private
criminal history data, and also that data collected and maintained by the committee may
not be disclosed outside the committee. Subdivision 3(e) provides that a sex offenders
2 These statutes are identical in all parts relevant to this matter.
6
whose risk assessment score indicates a low risk of reoffense shall be assigned to level I;
those whose score indicates a moderate risk shall be assigned to level II, and those whose
score indicates a high risk shall be assigned to level III. Subdivision 3(f) provides that,
before an offenders release, the committee shall prepare a risk assessment report3 which
specifies the risk level to which the offender has been assigned and the reasons
underlying the committees risk assessment decision and shall give the report to the
offender and to the law enforcement agency at least 60 days before an offender is
released from confinement.
Subdivision 4 provides in relevant part:
(a) The law enforcement agency in the area where the
sex offender resides, expects to reside, is employed, or is
regularly found, shall disclose to the public any information
regarding the offender contained in [the risk assessment]
report . . . that is relevant and necessary to protect the public
and to counteract the offenders dangerousness, consistent
with the guidelines in paragraph (b). The extent of the
information disclosed and the community to whom disclosure
is made must relate to the level of danger posed by the
offender, to the offenders pattern of offending behavior, and
to the need of community members for information to
enhance their individual and collective safety.
(b) The law enforcement agency shall employ the
following guidelines in determining the scope of disclosure
made under this subdivision:
(1) if the offender is assigned to risk level I, the agency
may maintain information regarding the offender within the
3 After describing the offense for which appellant was found guilty, the risk assessment
report also describes several incidents that did not result in conviction, including one in
which appellant was investigated for grabbing a 14-year old female and dragging her
across a road toward a house. Appellant does not claim that the committee included any
improper data in the risk assessment report.
7
agency and may disclose it to other law enforcement
agencies. . . .;
(2) if the offender is assigned to risk level II, the
agency also may disclose the information to agencies and
groups that the offender is likely to encounter for the purpose
of securing those institutions and protecting individuals in
their care while they are on or near the premises of the
institution. . . . The agency also may disclose the information
to individuals the agency believes are likely to be victimized
by the offender. The agencys belief shall be based on the
offenders pattern of offending or victim preference as
documented in the information provided by the department of
corrections or human services;
(3) if the offender is assigned to risk level III, the
agency shall disclose the information to the persons and
entities described in clauses (1) and (2) and to other members
of the community whom the offender is likely to encounter,
unless the law enforcement agency determines that public
safety would be compromised by the disclosure or that a more
limited disclosure is necessary to protect the identity of the
victim.
Subdivision 4(c) defines those an offender is likely to encounter as those in, or in close
proximity to, a location where the offender lives or is employed or which the offender is
likely to visit on a regular basis. Subdivision 4(d) provides that a law enforcement
agency or official who discloses information shall make a good faith effort to make the
notification within 14 days of receipt of a confirmed address. Subdivision 5 provides
that the law enforcement agency where an offender plans to reside is to be given all
relevant information concerning the offender, including information on risk factors in the
offenders history and the risk level to which the offender was assigned, by the
appropriate department (corrections or human services) within five days of the
departments receipt of the offenders approved release plan.
8
Finally, subdivision 7 provides that no criminal liability will attach for either
disclosing or failing to disclose information as permitted by this section, that no civil
liability will attach for failing to disclose such information, and that no civil liability will
attach for disclosing information that is consistent with the offenders conviction
history. Subdivision 7 also provides that this immunity does not extend to disclosure of
information relating to conduct for which the offender was not convicted.
The district court found that Huber, Koop, and Bolduc had disclosed information
relating to conduct for which appellant was not convicted, and we agree that the statutory
immunity provided by subdivision 7 is not available to these respondents. But we also
agree with the district court that official immunity is available to them.
A public official is not protected by [official] immunity in the performance of his
duties when he fails to perform a ministerial act, or when his performance of a
discretionary act is willful or malicious. Thompson, 707 N.W.2d at 673. Thus, the first
question before us is whether the conduct of Huber, Koop, and Bolduc was ministerial or
discretionary. If it was discretionary, the second question becomes whether they acted
willfully or maliciously.
A discretionary act requires the exercise of individual judgment in carrying out
duties, while a ministerial act involves merely the execution of a specific duty arising
from fixed and designated facts. Id. The language of Minn. Stat. 244.052 both
presupposes and requires that law enforcement officials use their individual judgment.
Subdivision 4(b) provides guidelines to assist law enforcement officials in
determining the scope of disclosure. Subdivision 4(b)(1) and (2) provide that an agency
9
may disclose information about risk level I and risk level II offenders, while
subdivision 4(b)(3) provides that the agency shall disclose information unless [it]
determines that public safety would be compromised by the disclosure. In construing
statutes, may is permissive and shall is mandatory. Minn. Stat. 645.44, subds. 15,
16 (2006). At no point does Minn. Stat. 244.052 either mandate or forbid disclosure
without reference to the disclosers judgment as to what to disclose and to whom to
disclose it. Thus, disclosure of information under Minn. Stat. 244.052 is a discretionary
act.
The subdivision 7 provision of immunity from civil liability for all failures to
disclose but only for disclosures of information consistent with an offenders conviction
history is consistent with the requirement that even discretionary acts must be performed
without malice for official immunity to attach. See Thompson, 707 N.W.2d at 673
(public official not protected by official immunity when performance of discretionary act
is willful or malicious). While a public officials decision to disclose information other
than what is consistent with an offenders conviction history could be willful or
malicious, and would therefore not be entitled to official immunity, clearly such is not
demonstrated here.
Mere allegations of malice are not sufficient to support a finding of malice, as
such a finding must be based on specific facts evidencing bad faith. Reuter v. City of
New Hope, 449 N.W.2d 745, 751 (Minn. App. 1990), review denied (Minn. Feb. 28,
1990). Nothing in the record indicates that the motive of Huber, Koop, and Bolduc were
the bad-faith deprecation of appellant rather than their attempt to follow statutory
10
mandates and guidelines and to protect individuals in the areas where appellant was
residing. The notice about appellant referred to forced sexual conduct with females
ranging in age from 14 to adult and appellants only conviction resulted from an
incident with an adult. But appellants risk-assessment report said he has a definite
pattern of harassing females and that the juvenile investigations occurred but there
were no charges or convictions. Minn. Stat. 244.052, subd 4(a), provides for
disclosure of information in the risk-assessment report. Minn. Stat. 244.052, subd.
4(b)(2), provides that, for risk level II offenders, [t]he agency also may disclose the
information to individuals the agency believes are likely to be victimized by the offender.
The agencys belief shall be based on the offenders pattern of offending or victim
preference as documented in the information provided by the department of corrections
or human services.
Although the disclosures of Huber, Koop, and Bolduc may have deprived them of
the protections of subdivision 7, the district court properly continued its analysis by
considering the application of official immunity to the challenged actions. We conclude,
as did the district court, that Huber, Koop, and Bolduc acted in a manner intended to
comply with the statute, and that they were entitled to official immunity.4
4 Because we conclude that Huber, Koop, and Bolduc were entitled to official immunity,
we do not address their argument that they are entitled to absolute immunity.
11
2. Statute of limitations for Huber, Koop, and Bolduc5
In November 2005, appellant filed his complaint alleging that Koop committed
slander and defamation prior to December 31, 2001, that Bolduc did so in July 2003, and
that Huber did so in August 2003. Minn. Stat. 541.07(1) (2004) provides that actions
for these torts shall be commenced within two years. Appellant relies on Minn. Stat.
541.06 (2004), which provides that actions against a sheriff, coroner, or constable for
any act done in an official capacity shall be commenced within three years. But Minn.
Stat. 541.06 does not mention police officer, and this court cannot add language that
is not present in the statute or supply what the legislature purposely omits or
inadvertently overlooks. Roer v. Dunham, 682 N.W.2d 179, 181 (Minn. App. 2004).
Appellant argues that constable means police officer but offers no support for
this argument. Moreover, the legislatures practice has been to use both terms. See, e.g.,
Minn. Stat. 169A.03, subd. 18 (2004) (defining peace officer to include both a
constable and a police officer of any municipality); Minn. Stat. 631.04 (2004) (A
police officer, constable, sheriff, or other officer in charge of a court . . . .). Thus, the
terms are not synonymous. The three-year limitation of Minn. Stat. 541.06 (2004) does
not apply to police officers and appellants claims are barred by the two-year limitation of
Minn. Stat. 541.07(1).6
5 This issue was presented to, but not addressed by the district court, which dismissed the
claims against Huber, Koop, and Bolduc on the ground of official immunity. We address
it in the interest of completeness. See Minn. R. Civ. App. P. 103.04.
6 Minn. Stat. 541.06 (2006) has been revised to impose the three-year limitation on
actions against a sheriff or coroner. References to constables have been deleted from
12
3. Service on Klang
This court reviews de novo whether service of process was proper. Amdahl v.
Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992), review denied (Minn. July
16, 1992). Appellant chose to serve Klang by mail, which is governed by Minn. R. Civ.
P. 4.05:
In any action service may be made by mailing a copy
of the summons and of the complaint (by first-class mail,
postage prepaid) to the person to be served, together with two
copies of a notice and acknowledgement conforming
substantially to Form 22 and a return envelope, postage
prepaid, addressed to the sender. If acknowledgment of
service under this rule is not received by the sender within the
time defendant is required by these rules to serve an answer,
service shall be ineffectual.
It is undisputed that appellant mailed Klang a copy of the complaint and other documents
twiceonce on October 13, 2005 and once on June 15, 2006and that Klang never
acknowledged service. Service, therefore, was ineffective, and the district court properly
dismissed the claims against Klang because it had no jurisdiction over him. See Mercer
v. Andersen, 715 N.W.2d 114, 118 (Minn. App. 2006) (Ineffective service of a
defendant results in a lack of personal jurisdiction.).
4. Statute of limitations for Klang
The construction and application of a statute of limitations are questions of law,
which this court reviews de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54
(Minn. 1998).
Minnesota statutes. See 2005 Minn. Laws ch. 10, art. 2, 4, subd. 2, at 137 (directing
revisor to eliminate references to the term constable).
13
Minn. Stat. 541.06 provides that an action against a sheriff for an act performed
in an official capacity must be brought within three years. Appellant claimed that the
sheriffs actions of which he complained occurred on January 7, 2002, and June 23, 2003.
The district court determined on September 22, 2006, that neither of appellants attempts
to serve Klang had been effective. Because more than three years had elapsed since the
acts complained of occurred, the district court did not err in dismissing with prejudice the
claims against Klang on the ground that the statute of limitations had run.
D E C I S I O N
Because Huber, Koop, and Bolduc were entitled to official immunity for their
good-faith notification of communities about appellant, and because the relevant statute
of limitations had run when appellant brought his claims against them, we affirm the
dismissal of those claims. Because Klang was never properly served and the relevant
statute of limitations had run, we affirm the dismissal of the claims against him.
Affirmed.
 

 
 
 

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