In the Matter of the Civil Commitment of: James Allen Barber

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1822

In the Matter of the Civil Commitment of: James Allen Barber

Filed April 24, 2017
Affirmed
Klaphake, Judge*

Judicial Appeal Panel
File No. AP14-9013
Rice County File No. 66-P4-03-001752

Lance R. Heisler, Lampe Law Group, L.L.P., Northfield, Minnesota (for respondent
Barber)

Lori Swanson, Attorney General, Anthony R. Noss, Assistant Attorney General, S t. Paul,
Minnesota; and

John Fossum, Rice County Attorney, Faribault, Minnesota (for appellant Commissioner of
Human Services)

Considered and decided by Peterson, Presiding Judge; Bjorkman , Judge; and
Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
The parties challenge a judicial appeal panel decision that grants the petition of a
civilly committed individual seeking transfer and denies his request for a provisional

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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discharge. Because the record supports the finding that respondent -petitioner’s offense
history has been sufficiently established and appellant points to no other bar to respondent’s
transfer, we affirm the judicial appeal panel’s transfer decision. Because respondent’s
proffered provisional discharge plan is insufficient to provide reasonable safety to the
public, we affirm the judicial appeal panel’s denial of his provisional discharge.
D E C I S I O N
After the special review board makes a recommendation on a petition made by a
petitioner, the petitioner may seek rehearing and reconsideration of the judicial appeal
panel. Minn. Stat. § 253D.28, subd. 1 (2016). Before the judicial appeal panel, the
petitioner has the burden of going forward with “sufficient, competent evidence that, if
proven, would entitle the petitioner to relief,” and if the petitioner satisfies this burden, the
commissioner must prove by clear and convincing evidence that relief should be denied.
Larson v. Jesson, 847 N.W .2d 531, 535 (Minn. App. 2014) (quotation omitted). The
judicial appeal panel “must address” any applicable statutory factors when making its
decision. Piotter v. Steffen, 490 N.W.2d 915, 919 (Minn. App. 1992), review denied (Minn.
Nov. 17, 1992) ; see also Larson, 847 N.W.2d at 534-35. On appeal, we review the
decisions made by a judicial appeal panel for clear error and examine the record to
determine if “the evidence as a whole” sustains its findings. Larson, 490 N.W.2d at 534.
A judicial appeal panel clearly errs if it ignores the “vast weight of the evidence.” Piotter,
490 N.W.2d at 920. If the record sustains the findings of the panel, it is immaterial that it
might also support contrary findings. Rydberg v. Goodno, 689 N.W.2d 310, 314 (Minn.
App. 2004).
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Following his conviction for first-degree criminal sexual conduct involving his
young daughter, respondent James Barber was civilly committed in 2004 as a sexually
dangerous person and a sexual psychopathic personality . In 2013, he petitioned for
discharge, provisional discharge, or a transfer to Community Preparation Services (CPS).
After his request was denied, Barber sought rehearing before the judicial appeal panel ,
which granted his request for transfer but denied his request for provisional discharge. The
state appealed the transfer decision, and Barber filed a notice of related appeal to challenge
the denial of his request for provisional discharge.
I. Transfer to CPS
Following a four-day hearing, the judicial appeal panel determined that “[t]he
totality of the testimony and the exhibits submitted support a transfer by a preponderance
of the evidence.” The commissioner argues that the judicial appeal panel erred in ordering
Barber to be transferred to CPS, a placement with less securit y than the razor-wire ringed
“secure perimeter” where Barber had been receiving treatment through the Minnesota Sex
Offender Program (MSOP). Transfer is governed by Minn. Stat. § 253D.29, which states:
The following factors must be considered in determining
whether a transfer is appropriate:
(1) The person’s clinical progress and present treatment
needs;
(2) The need for security to accomplish continuing
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. § 253D.29, subd. 1 (2016). “[A] petition for transfer imposes the burdens of
production and persuasion on the petitioner at the hearing before the judicial appeal panel.”
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Foster v. Jesson, 857 N.W.2d 545, 548 (Minn. App. 2014). We review the judicial appeal
panel’s factual findings to determine “whether the evidence as a whole sustains the appeal
panels’ findings.” Larson, 847 N.W.2d at 534. If the “record as a whole sustains” the
finding, we will not reverse. Rydberg, 689 N.W.2d at 313. Where the findings necessary
for a conclusion are adequately supported, inclusion of unsupported findings is not
reversible error. Id. at 314. We review the judicial appeal panel’s construction of the law
de novo. Larson, 847 N.W.2d at 534.
The commissioner argues that the judicial appeal panel clearly erred in its findings
related to the testimony of the risk assessors and an administrator. The judicial appeal
panel found that evidence produced by the first risk assessor was “more supportive of a
transfer than non-supportive of one,” that the second risk assessor’s opposition to transfer
was not “as decisive” as her opposition to provisional discharge, and that one of the
administrator’s testimony relied only on an unsupported review of Barber’s records.
The first risk assessor testified that she would support a transfer if Barber gave a
non-deceptive full disclosure polygraph test before the transfer. The MSOP uses polygraph
tests to establish a committed person’s full offense history and arousal pattern. But the
judicial appeal panel found that though Barber does not admit to abusing his daughter, he
“admitted in a therapy group on June 13, 2016 that he had masturbated to fantasies of his
daughter when he was in prison,” that he “wished that he had molested her,” and he stated
he would have molested her if he had had the opportunity. The judicial appeal panel
concluded that Barber’s admissions “support a finding that he has made significant
progress on understanding his sexual deviancy.” We read this as a finding that Barber’s
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sexual offense history was sufficiently revealed, and that neither a full-disclosure
polygraph nor a penile plethysmograph test (PPG), which generally follows a full
disclosure polygraph test and defines an arousal pattern, need not occur before Barber’s
transfer to CPS. The record supports this finding. Barber’s treating clinician testified that
the polygraph and PPG should be used as treatment tools rather than barriers to Barber’s
progress. Because the judicial appeal panel had found that the tests identified by the first
risk assessor were unnecessary, the judicial appeal panel did not clearly err in finding that
the first risk assessor’s overall testimony supported a transfer.
The panel’s characterization of the second risk assessor is similarly supported by
the record. The panel found that the second risk assessor’s opinion opposing Barber’s
transfer was not “as decisive” as her opinion opposing his provisional discharge. Though
she testified that all five statutory factors weighed against transfer, her recommendation
against transfer focused heavily on the completeness of Barber’s offense history and his
failure to give a full disclosure polygraph. The judicial appeal panel found that Barber’s
offense history was sufficiently complete, and therefore properly found the second risk
assessor’s testimony concerning transfer less compelling than her testimony on provisional
discharge.
The commissioner also argues that the judicial appeal panel erred when it found that
an administrator’s testimony on Barber’s need to be confined within a secure perimeter
was not supported by Barber’s treatment scores. The record shows that Barber received
one score that was less than satisfactory —a “Needs Attention” score in the category
“Cooperate with sexual assessments.” In the remaining 89 categories, Barber’s scores were
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mainly high, including the scores related to his ability to internalize treatment and
understand his triggers. The judicial appeal panel did not err in rejecting the
administrator’s testimony.
The commissioner further argues that the judicial appeal panel erred in concluding
that transfer was appropriate under the statute, asserting that the decision focused too much
on clinical progress and not enough on public safety, and that all credible witnesses except
for Barber’s treating clinicians and Barber himself counseled against transfer.
The judicial appeal panel found that Barber’s “present treat ment needs and clinical
progress support a transfer to CPS.” This is supported by the testimony of Barber’s treating
clinicians that his behavior has been well-managed, Barber’s written treatment reports, and
his high treatment scores. The commissioner argues that Barber continues to need to
complete a full-disclosure polygraph and a PPG, but t he judicial appeal panel found that
such testing was not required before transfer.
The judicial appeal panel also found that “[t]he security safeguards in CPS are
sufficient for [Barber] to accomplish continuing treatment,” and that Barber “does not need
continued institutionalization within the secure perimeter.” Barber’s primary clinician
testified that Barber has had no complaints against him, and that he is “willing to do the
work” and will continue to do so. Both clinicians who testified stated that they do not have
concerns about Barber completing treatment in a less institutionalized setting. Testimony
by treating professionals may be given greater weight than that given to evaluators who
spend less time with patients. See Piotter, 490 N.W.2d at 920. Moreover, the first risk
assessor explicitly concluded that Barber does not need to be in a razor-wire facility. The
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only evidence suggesting that a higher degree of security or institutionalization was
necessary is the second risk assessor’s testimony that Barber should establish his offense
history and arousal patterns in an institutional setting for his own safety because he has a
history including self-harm. Because the judicial appeal panel found that Barber’s offense
history and arousal pattern have been sufficiently established, that testimony is not
inconsistent with a finding that Barber is not in need of further institutionalization.
We also conclude that the judicial appeal panel’s finding that Barber’s “present
placement or placement at CPS meet [his] needs equally ” is supported by the record. An
MSOP administrator testified that upon transfer to CPS, Barber will remain in the middle
of Phase II of sex-offender treatment and would have the same expectations, with a
relatively less secure environment. Having concluded that Barber does not pose a security
threat, we believe that the judicial appeal panel correctly concluded that either facility
would meet Barber’s needs.
Finally, we conclude that the judicial appeal panel’s finding that “[t]ransfer to CPS
can be accomplished with a reasonable degree of safety for the public” is supported. There
is no evidence in the record suggesting that Barber’s transfer would be unsafe. An
administrator testified that Barber would be able to walk on campus with staff escorts at
CPS, but did not suggest that he would have access to the public.
For these reasons, we affirm the judicial appeal panel’s order for Barber’s transfer
to CPS.
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II. Provisional Discharge
Barber argues that the panel erred when it determined that the state established by
clear and convincing evidence that his request for provisional discharge should be denied.
The applicable statute provides:
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. § 253D.30, subd. 1(b) (2016). In denying Barber’s request for provisional
discharge, the judicial appeal panel addressed both statutory factors and found that neither
weighed in favor of provisional discharge.
The statute requires the panel to consider whether there is “a need for treatment and
supervision in the committed person’s current treatment setting.” Minn. Stat. § 253D.30,
subd. 1(b)(1). The judicial appeal panel expressed concern regarding Barber advancing
beyond the scope of what his treatment has covered and concluded that Barber needs to
“complete some Phase II and Phase III modules” and experience increasing
deinstitutionalization at CPS before being provisionally discharged.
Barber argues that he no longer needs the intense level of treatment he is receiving,
and that both treating clinicians’ testimony supports his request for provisional discharge.
Though Barber’s clinicians did testify positively regarding his progress, their testimony
does not overcome other evidence pertaining to Barber’s continued need for treatment and
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supervision. Rydberg, 689 N.W.2d at 314. Barber has completed only Phase I and portions
of the Phase II modules, which focus on commit ment to change, learning program
expectations, and understanding offense dynamics. He has yet to receive any Phase III
treatment, which is geared toward reintegration in the community. Therefore, the panel
did not err when it determined that Barber continues to need treatment and supervision,
especially in the area of reintegration, before being provisionally discharged.
We next address the panel’s determinations related to the second statutory factor,
the adequacy of Barber’s provisional discharge plan. The statute requires “the conditions
of the provisional discharge plan” to “provide a reasonable degree of protection to the
public and . . . enable the committed person to adjust successfully to the community.”
Minn. Stat. § 253D.30, subd. 1(b)(2). The panel found that Barber’s provisional discharge
plan does not adequately address his treatment needs or include specific provisions
concerning monitoring and living arrangements, and accordingly, does not provide a
reasonable degree of safety to the public.
The record includes extensive testimony about the insufficiency of Barber’s
provisional discharge plan, emphasizing that the plan is vague and incomplete. The plan
does not include an address; Barber instead states: “I plan to live wherever I can afford to
start with.” While the lack of a specific address does not, alone, render a plan unable to
provide protection to the public, see In re Civil Commitment of Kropp , __ N.W.2d. __, __
No. A16-1944, slip. op. at 9 (Minn. App. Apr. 10, 2017), the plan lacks specificity in other
crucial areas. It does not propose a specific employment opportunity; Barber instead states
he is “open to finding a job and getting adjusted to living in the community again.” He
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explains that he “will get a car, truck or motorcycle . . . [or] use public transportation.” He
also does not provide specific plans for treatment program participation. Additionally,
though he indicates that he will “comply with monitoring services, ” he does not explain
what monitoring would be used. Barber’s provisional discharge plan was sufficiently
vague for the judicial appeal panel to conclude that its conditions would not “provide a
reasonable degree of protection to the public.” Minn. Stat. § 253D.30, subd. 1(b)(2).
Indeed, Barber does not argue that his plan adequately provides for public safety .
Instead, he argues that MSOP is statutorily obligated to assist committed persons with the
development of a sufficiently detailed provisional discharge plan. The civil commitment
statute states:
A provisional discharge plan shall be developed,
implemented, and monitored by the executive director in
conjunction with the committed person and other appropriate
persons. The executive director shall, at least quarterly, review
the plan with the committed person and submit a written report
. . . concerning the committed person’s status and compliance
with each term of the plan.

Minn. Stat. § 253D.30, subd. 2 (2016). The parties dispute when the MSOP assistance
must occur. The commissioner argues that MSOP must assist with drafting a provisional
discharge plan only after a provisional discharge, pointing to the provision’s emphasis on
compliance with the plan. However, the commissioner’s interpretation ignores that another
statutory provision that requires the committed person to proffer a provisional discharge
plan to the SRB and the judicial appeal panel to consider before provisional discharge is
granted. Minn. Stat. § 253D.35 , subd. 2 (2016). Because we must assume that the
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legislature intends the entire statute to be effective, we do not adopt the state’s proposed
construction. Minn. Stat. § 645.17(2) (2016).
Instead, we read the statute as requiring MSOP to develop a provisional discharge
plan with the committed person at some point before provisional discharge is granted. The
statute does not indicate at what time such assistance must be offered, and we decline to
dictate a timeline here. Though it seems logical that MSOP would assist a committed
person in drafting a provisional discharge plan before such a plan is submitted to the SRB,
we will not write in a statutory term that the legislature did not include. Because an MSOP
administrator testified that MSOP works with committed persons who have reached the
appropriate stage in their treatment to draft provisional discharge plans, and that a generic
provisional discharge plan template is available to committed persons upon their request,
we conclude that Barber did not demonstrate a statutory violation by MSOP. Accordingly,
we affirm the judicial appeal panel’s denial of Barber’s motion for provisional discharge.
Affirmed.