In the Matter of the Civil Commitment of: Joseph Edwin Harju

This opinion will be unpublished and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
A17-0332

In the Matter of the Civil Commitment of: Joseph Edwin Harju

Filed July 17, 2017
Affirmed
Worke, Judge

St. Louis County District Court
File No. 69DU-PR-08-665

Jennifer L. Thon, Ryan B. Magnus, Steven D. Winkler, Jones and Magnus, Mankato,
Minnesota (for appellant Joseph Edwin Harju)

Lori Swanson, Attorney General, Frederic J. Argir, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Considered and decided by Ross, Presiding Judge; Worke, Judge; and Kirk, Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant, who is committed as a sexually dangerous person (SDP), petitioned for
a transfer, provisional discharge, or discharge. A judicial appeal panel dismissed his
petition. A ppellant challenges the dismissal, arguing that the panel (1) failed to make
sufficient findings, (2) erred by dismissing his petition for transfer because he established
that a transfer is appropriate, and (3) erred by dismissing his petition for provisional
discharge or discharge because he established a prima facie case for both. We affirm.

2
FACTS
Appellant Joseph Edwin Harju “has a long history of engag ing in harmful sexual
conduct,” and in 2009, he was indeterminately civilly committed to the Minnesota Sex
Offender Program (MSOP) as a SDP. In re Civil Commitment of Harju , No. A09-1619,
2010 WL 431593, at *1-2 (Minn. App. Feb. 9, 2010), review denied (Minn. Apr. 20, 2010).
In November 2015, Harju petitioned the special review board (SRB) for a transfer
to Community Preparation Services (CPS) , provisional discharge , or discharge, and the
following month a hearing was held before the SRB. Harju proposed entering a treatment
program in Duluth if released, and the SRB held the record open so that he could submit
information on that placement, but no submission was received . T he SRB ultimately
recommended denying Harju’s petition.
Harju petitioned for rehearing a nd reconsideration, pursuant to what is now Minn.
Stat. § 253D.28, subd. 1 (2016), and in August 2016, a hearing was held before a thre e-
judge panel. The panel received 17 exhibits by stipulation, as well as a report from a court-
appointed examiner, Dr. Robert Riedel, Ph.D, who also testified as an expert.
In his report, Dr. Riedel concluded that Harju was not a danger to the public and
that a transfer or provisional discharge was reasonable. However, Dr. Riedel concluded
that Harju was “still considered [an] untreated sex offender and thus ful l discharge is not
possible.” Dr. Riedel testified before the panel and noted adjustment s to his report,
including changes to Harju’s Static-99R scores (a sex offender risk assessment instrument).
He acknowledged that he had not accounted for all of Har ju’s convictions, Harju’s risk
category was actually moderate to high, and if impending changes to the Static-99R format

3
were accounted for, Harju would be in the high -risk category. These changes increased
the likelihood of recidivism listed in Dr. Riedel’s report. Despite these changes, Dr. Riedel
opined that Harju met the criteria for a transfer to CPS. He felt that “provisional discharge,
under the terms and conditions that were provided, was sufficient to adequately protect the
public,” and he supported discharge if certain statutorily imposed aftercare provisions were
fully implemented.
Following Harju’s case-in-chief, the state mov ed to dismiss Harju’s petit ion
pursuant to Minn. R. Civ. P . 41.02(b). The panel granted the state’s motion. The panel
concluded that Harju failed to meet his burden of persuasion for a transfer and did not make
a prima facie case for either provisional discharge or discharge. Harju appeals.
D E C I S I O N
Harju’s petition was dismissed pursuant to Minn. R. Civ. P. 41.02(b), which allows
a defendant to move, after the plaintiff’s presentation of evidence, for dismissal on the
grounds that the plai ntiff’s claim is legally or factually deficient . We review such a
dismissal of a transfer petition for clear error and a petition seeking discharge or provisional
discharge de novo. Foster v. Jesson, 857 N.W.2d 545, 548 (Minn. App. 2014).
Harju argues that the panel (1) failed to make sufficient findings to allow for
meaningful review; (2) erred by concluding that he failed to establish that a transfer i s
appropriate; and (3) erred by dismissing his petition for provisional discharge or discharge.
We address each of these arguments in turn.

4
The judicial appeal panel made sufficient findings of fact.
Harju first argues that the panel failed to make sufficient findings to allow for
meaningful review because the panel’s findings were mere recitation s of the evidence
presented and not meaningfully tied to the panel’s conclusions of law. See In re Civil
Commitment of Spicer , 853 N.W.2d 803 , 810 -12 (Minn. App. 2014) (reversing and
remanding because district court made insufficient findings) . We disagree. T he panel’s
findings are sufficient.
In dismissing Harju’s petition, the panel was required to address the statutory factors
pertaining to transfer, provisional discharge, and discharge of a SDP. See In re Civil
Commitment of Kropp, 895 N.W.2d. 647, 650 (Minn. App. 2017) (concerning provisional
discharge), review denied (Minn. June 20, 2017); Piotter v. Steffen, 490 N.W.2d 915, 919
(Minn. App. 1992) (concerning transfer), review denied (Minn. Nov. 17, 1992).
The findings of fact section in the panel ’s order contains a recitation of evidence
presented. However, t he conclusions of law section contain s findings addressing the
applicable statutory factors. See Graphic Arts Educ. Found., Inc. v. State, 240 Minn. 143,
145-46, 59 N.W.2d 841, 844 (1953) (“[A] fact found by the court, although expressed as a
conclusion of law, will be treated upon appeal as a finding of fact.”). These findings are
broken into separate paragraphs covering transfer, provisional discharge, and discharge.
As to Harju’s requested transfer, the panel was required to make findings on the
following factors: (1) Harju’s “clinical progress and present treatment needs”; (2) his
“need for security to accomplish continuing treatment”; (3) his “need for continued
institutionalization”; (4) the facility that can best meet Harju’s needs; and (5) “whether

5
transfer can be accomplished with a reasonable degree of safety for the public.” Minn.
Stat. § 253D.29, subd. 1(b) (2016).
The panel found, in part, that (1) Harju has made slow clinical progress and has not
completed sex offender programming despite multiple attempts ; (2) he has significant
treatment needs, blames drugs and alcohol for his actions, minimizes his impact on his
victims, and has “been found to show an inability to control his sexual impulses ”; (3) he
has a high need for continued institutionalization at a secure facility; (4) Moose Lake is the
most appropriate facility ; and (5) a transfer c annot be accomplished with a reasonable
degree of safety for the public. The panel’s findings are sufficient to allow for meaningful
review.
The findings on Harju’s request for provisional discharge are also sufficient. A
person seeking provisional discharge bears the burden of presenting a prima facie case with
competent evidence. Minn. Stat. § 253D.28, subd. 2(d) (2016). Under Minn. Stat.
§ 253D.30, subd. 1 (2016), covering provisional discharge of a SDP, the committed person
must be “capable of making an acceptable adjustment to open society,” and 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.

6
The panel found that Harju “presented little to no evidence to show that he is capable
of making an acceptable adjustment to open society,” and no competent evidence “that his
course of treatment and present mental status indicate there is no longer a need for
treatment and supervision within the secure perimeter of the MSOP.” The panel also found
that Harju’s “own suggested provisional discharge plan ” did not co nstitute competent
evidence. The findings show that the statutory factors were considered and indicate the
perceived evidentiary shortcomings. Therefore, the findings are sufficient.
Likewise, the panel’s findings on Harju’s request for a discharge are sufficient.
Harju was required to present a prima facie case with com petent evidence. Minn. Stat.
§ 253D.28, subd. 2(d). The following criteria for discharge of a SDP are s et forth under
Minn. Stat. § 253D.31 (2016):
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.

In determining whether a discharge shall be
recommended, the special review board and judicial appeal
panel shall consider whether specific conditions exist to
provide a reasonable degree of protection to the public and to
assist the committed person in adjusting to the community. If
the desired conditions do not exist, the discharge shall not be
granted.

The panel found that Harju offered insufficient evidence that he is able to make an
acceptable adjustment to open society, is no longer dangerous, and is no longer in need of

7
inpatient treatment and supervision. The panel also found that he presented no competent
evidence of specific conditions that would provide a reasonable degree of protection to the
public and assist him in adjusting to the co mmunity. Again, t he panel’s findings are
sufficient because they address the applicable statutory factors and the perceived
evidentiary deficiencies.
The judicial appeal panel properly concluded that Harju failed to establish that a
transfer was appropriate.

Harju next argues that the panel clearly erred in dismissing his transfer petition. We
disagree. The judicial appeal panel, acting as the trier of fact, rendered findings that are
supported by the record taken as a whole and sufficient to support the panel’s conclusion
that a transfer is inappropriate. See Foster, 857 N.W.2d at 548.
A petition seeking a transfer “imposes the burdens of production and persuasion on
the petitioner at the hearing befo re the judicial appeal panel.” Id. at 548. The applicable
burden of persuasion is “by a preponderance of the evidence.” Minn . Stat. § 253D.28,
subd. 2(e) (2016). In determining whether a petitioner has demonstrated that a transfer is
appropriate, the judicial appeal panel must address the five facto rs set forth under Minn.
Stat. § 253D.29, subd. 1(b). Foster, 857 N.W.2d at 549.
The record, taken as a whole, supports the panel’s findings. Harju has a long history
of harmful sexual conduct with minor males dating from the early 1970s through 2000.
Although Dr. Riedel nominally supported a transfer, his report characterized Harju’s
treatment progress as “slow but steady,” noted that Harju is an “untreated sex offender,”
and that Harju “has not completed the program at Moose Lake or any other program ”

8
despite multiple attempts. Dr. Riedel testified that Harju’s risk category under the Static-
99R was moderate to high, and if impending changes to the format were accounted for,
Harju would be in the high-risk category. Assessments and reports entered into the record
support the findings that Harju blames drugs and alcohol for his actions, minimizes his
impact on his victims, and has ongoing and significant treatment needs best addressed at
the secure MSOP facility in Moose Lake . For example, Rachel Mack, Psy.D, LP,
submitted a 2015 report concluding that Harju had a “need for sex offense specific
treatment” and that there had been a “lack of a significant reduction of risk toward the
community.” The record taken as a whole supports the panel’s findings and conclusion
that a transfer is inappropriate. See Foster, 857 N.W.2d at 549.
The judicial appeal panel did not err by dismissing, pursuant to Minn. R. Civ. P.
41.02(b), Harju’s petition for provisional discharge or discharge.

Lastly, Harju argues that the panel erred by dismissing his petition for provisional
discharge or discharge because the panel imposed additional burdens of proof, improperly
weighed evidence, and made credibility determinations. We first address whether the panel
imposed additional burdens of proof.
Harju argues that the panel imposed additional burdens of proof for provisional
discharge because the panel noted that “[a] provisional discharge is not appropriate if a
transfer, a lesser custody reduction, is not appropriate.” Likewise, Harju contends that the
panel imposed additional burdens for discharge because the panel noted that “[a] full
discharge is not appropriate if transfer or a provisional discharge, lesser custody reductions,
are not appropriate. ” Harju argues that these statements are “contrary to the plain

9
language” of Minn. Stat. §§ 253D.30, subd. 1, .31. Harju’s argument is unavailing for two
reasons.
First, the panel set forth grounds independent of the aforementioned statement s for
denying Harju’s request for a provisional discharge or discharge, concluding that he failed
to put forth a prima facie case for both . Second, the panel’s statements regarding the
appropriateness of a discharge are consistent with prior caselaw. In Larson v. Jesson, 847
N.W.2d 531, 535 -36 (Minn. App. 2014), we noted that “ the criteria for a provisional
discharge are more lenient than the criteria for a discharge” and concluded that because the
petitioner failed to produce evidence sufficient to suppor t a provisional discharge, a
discharge was inappropriate. In sum, the panel did not commit reversible error by imposing
additional burdens of proof.
We next address whether the panel improperly weighed evidence and made
credibility determinations. Harju essentially contends that he put forth a prima facie case
for both provisional discharge and discharge, and any other conclusion shows that the
evidence was improperly analyzed by the panel . We disagree. The panel properly
concluded that Harju failed to make a prima facie showing.
A person committed as a SDP shall not be provisionally discharged or discharged
unless certain statutory criteria are met. See Minn. Stat. §§ 253D.30, subd. 1, .31. And a
person seeking provisional discharge or discharge bears the burden of presenting a prima
facie case with competent evidence. Minn. Stat. § 253D.28, subd. 2(d). If the petitioner
satisfies the burden of production at the “first -phase hearing,” the proceedi ng moves to a

10
“second-phase hearing,” and the burden shifts to the commissioner, who bears a burden of
persuasion on the merits. Coker v. Jesson, 831 N.W.2d 483, 485-86 (Minn. 2013).
When considering a motion to dismiss under Minn. R. Civ. P. 41.02(b) a fter the
first-phase hearing, as occurred here, the judicial appeal panel “may not weigh the evidence
or make credibility determinations,” and the panel must “view the evidence produced at
the first-phase hearing in a light most favorable to the committed person.” Id. at 490–91.
But dismissal may still be appropriate when the committed person does not meet his burden
of production. Id. at 491.
The panel found that Harju’s provisional -discharge plan did not constitute
competent evidence. We agree. “[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” is to be “developed, implemented, and
monitored” by the exec utive director of the MSOP or his o r her designee. Minn. Stat.
§§ 246B.01, subd. 2c, 253D.02, subd. 7, .30, subd. 2 (2016).
Harju’s provisiona l-discharge plan was developed by his attorneys with Harju’s
assistance. Harju would ordinarily develop a provis ional-discharge plan as part of his
programming, “but he was not yet to the point in the program where this is done.” Because
Harju failed to submit a provisional-discharge plan to the SRB that complied with section
253D.30, subd. 2, he did not present a prima facie case for provisional discharge. See
Minn. Stat. § 253D.28, subd. 3 (2016) (“The judicial appeal panel may not grant a transfer
or provisional discharge on terms or conditions that were not presented to the [SRB].”); cf.
Kropp, 895 N.W.2d at 649 (involving judicial appeal panel that denied motion to dismiss,

11
ordered the executive director of MSOP to develop a provisional -discharge plan , and
remanded the matter back to the SRB).1
Further, the judicial appeal panel found that Harju presented no competent evidence
“that his course of treatment and present mental status indicate there is no longer a need
for treatment and supervision within the secure perimeter of the MSOP.” We agree that
Harju failed to meet his burden of production on this factor. See Minn. Stat. § 253D.30 ,
subd. 1(b)(1) . Although Dr. Riedel nominally supported provisional discharge, he
considered Harju to be an untreated sex offender , conceded that Harju was in a moderate-
to high-risk category, noted that Harju failed to complete programming despite multiple
attempts, recommended supervised treatment for Harju’s remaining problems, and testified
that he would not support unsupervised provisional discharge or discharge . The record
supports the panel’s conclusion that Harju failed to present competent evidence to establish
a prima facie case for provisional discharge. See Minn. Stat. §§ 253D.28, subd. 2(d), .30,
subd. 1.
The panel also properly concluded that Harju failed to present a prima facie case for
discharge. Harju needed to present competent evidence that he 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 supe rvision.” Minn. Stat. §§ 253D.28, subd. 2(d) , .31.
The panel was also required to consider whether specific conditions exist ed to provide a

1 It is unclear if Harju submitted any provisional-discharge plan to the SRB; however, the
record does indicate that Harju failed to submit information on his proposed plac ement at
a Duluth treatment program, despite the record being held open by the SRB.

12
reasonable degree of protection to the public and to assist Harju in adjusting to the
community. Minn. Stat. § 253D.31.
Dr. Riedel, in his report, concluded that Harju is an untreated sex offender, and
there was no evidence to support a discharge. At the hearing, he opined that Harju could
meet the criteria for discharge if aftercare support was provided, and he discussed the
possibility of Harju receiving certain statutorily required aftercare services. See Minn. Stat.
§ 253D.35, subd. 2 (2016) (requiring the development of an aftercare plan and post-
discharge case management services ). But he conceded that he had “never seen one of
those [aftercare] plans” and raised concerns about “treading into unknown territory.”
In sum, Dr. Riedel’ s report stated that discharge was not appropriate , and his
testimony on the appropriateness of a discharge was inconsistent and based on
suppositions. For example, he testified that he supported a discharge “if t he conditions of
[Minn. Stat. § 253D.35, subd. 2 ] . . . were fully implemented.” But moments later he
conceded that a discharge would be problematic, stating:
[A]ll of a sudden we’re going to discharge him and all of a
sudden the director is going to put together a discharge plan,
and the discharge plan, if it’s done properly, will take weeks to
put together . One has to do all sorts of research about
locations, research abo ut support services, and that. But he’s
already out. He’s been discharged.

Given Dr. Riedel’s report, which noted the inappropriateness of a discharge, and the
inconsistent and suppositional nature of his testimony, the panel did not err in concluding
that Harju failed to put forth a prima facie case with competent evidence. Moreover, given

13
Harju’s failure to present a prima facie case for provisional discharge, a full discharge is
inappropriate. See Larson, 847 N.W.2d at 535.
The judicial appeal panel did not err in dismissing Harju’s petition seeking a
transfer, provisional discharge, or discharge. The panel’s findings are sufficient to allow
for meaningful review and address the applicable statutory factors. The record taken as a
whole is sufficient to support the panel’s findings and conclusion that a transfer is
inappropriate. And the panel did not err in concluding that Harju failed to establish a prima
facie case for provisional discharge or discharge.
Affirmed.