In the Matter of the Civil Commitment of: Kirk Alan Fugelseth

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1236

In the Matter of the Civil Commitment of: Kirk Alan Fugelseth

Filed January 29, 2018
Affirmed
Johnson, Judge

Judicial Appeal Panel
File No. AP13-9041
Clay County District Court
File No. 14-PX-02-001341

Lori Swanson, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul,
Minnesota (for appellant Commissioner of Minnesota Department of Human Services)

William L.H. Lubov, Lubov Anderson, LLC, Golden Valley, Minnesota; and

Michael C. Hager, Minneapolis, Minnesota (for respondent Kirk Alan Fugelseth)

Brian J. Melton, Clay County Attorney, Jenny Marie Samarzja, Assistant County Attorney,
Moorhead, Minnesota (for respondent Clay County)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
S Y L L A B U S
If a person who was civilly committed as a sexually dangerous person or a sexual
psychopathic personality seeks a full discharge and satisfies the initial burden o f
production, he must be discharged unless the party opposing discharge proves by clear and
convincing evidence that, first, he continues to need inpatient treatment and supervision
and, second, he continues to be dangerous to the public.

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O P I N I O N
JOHNSON, Judge
Kirk Alan Fugelseth was civilly committed as a sexually dangerous person and a
sexual psycho pathic personality in 2003 . Ten years later , he requested a provisional
discharge from his commitment, and he later requested a full discharge. The judicial appeal
panel granted his request for a full discharge. The commissioner of human services
appeals. We conclude that the judicial appeal panel did not err by interpreting the
applicable statute to require the commissioner to prove that Fugelseth is no longer in need
of inpatient treatment and supervision. We further conclude that the judicial appeal panel
did not err by finding that Fugelseth is no longer dangerous to the public. Therefore, w e
affirm.
FACTS
Fugelseth is a 50-year-old man who was determined to be a sexually dangerous
person (SDP) and a sexual psychopathic personality (SPP) and was civilly committed to
the Minnesota Sex Offender Program (MSOP).
Fugelseth’s status as an SDP and an SPP is based on sexual misconduct occurring
approximately 20 to 30 years ago. In 1994, he pleaded guilty in Oregon to one count of
second-degree sodomy and one count of third -degree sexual abuse. He admitted that,
beginning in 1989 , he sexually abus ed two pre -teen boys on multiple occasions over
approximately one and one-half years. The Oregon court sentenced Fugelseth to
concurrent probation terms of five years and ten years.
In 1997, Fugelseth was found guilty in Arizona of one count of attempted felony
child molestation . He admitted that, on one occasion in December 1997, he sexually
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molested an eight-year-old girl. The Arizona court sentenced him to 12 months of
imprisonment and a lifetime term of probation.
While Fugelseth was serving his prison term in Arizona , he was extradited to
Minnesota to face criminal charges for sexual misconduct toward the same girl. In 1999,
he pleaded guilty in Clay County to one count of second-degree criminal sexual conduct.
He admi tted that, in late 1995 or early 1996 , he sexually abused the girl on multiple
occasions over approximately one year. The district court sentenced him to 45 months of
imprisonment.
In 2000, Fugelseth was convicted in federal court in Minnesota of possession of
child pornography . Fugelseth admitted that he downloaded and e -mailed hundreds of
pornographic images . The federal district court sentenced him to 60 months of
imprisonment.
In January 2003, Clay County petitioned to civilly commit Fugelseth as an SDP and
an SPP . In September 2003, the Clay County D istrict Court granted the petition and
committed Fugelseth to the custody of the commissioner of human services for an
indeterminate period of time. Since his commitment, Fugelseth has been in MSOP at either
the Moose Lake location or the St. Peter location. In the summer of 2010, Fugelseth was
transferred to the Community Preparation Services (CPS) program, which is in a non -
secure facility at MSOP’s St. Peter location.
In January 2013, Fugel seth petitioned the special review board for a provisional
discharge. In October 2013, during a hearing before the special review board, Fugelseth
amended his petition to request a full discharge or a provisional discharge. In November
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2016, the special review board recommended granting his request for a provisional
discharge and denying his request for a full discharge.
Fugelseth then petitioned the judicial appeal panel for a rehearing and
reconsideration of his request for a full discharge. The judicial appeal panel held three
evidentiary hearings in December 2016, March 2017, and April 2017. Fugelseth called six
witnesses. Lauren Herbert , a forensic psychologist at MSOP, testified in support of
Fugelseth’s request for a full discharge. The founder of a support group called Choosing
Healthy Sexual Boundaries testified that Fugelseth participates in the group and attends
weekly meetings. Katie Holmgren, the clinical supervisor of the support group Project
Pathfinder and Fugelseth’s current therapist, testified about Fugelseth’s participation in
individual therapy and group therapy, asserted that he was a “model group member ,” and
stated that he will not successfully complete the Project Pathfinder program until he lives
in the community. A member of the Project Pathfinder support group testified that he
would hire Fugelseth for a part-time position in his food truck if Fugelseth were discharged.
A homeowner testified that he has space in his home where Fugelseth could live if he were
discharged. Fugelseth also testified on his own behalf.
The commissioner called three witnesses. Christopher Kunkel , an independent
forensic psychologist, testified that Fugelseth should be granted a provisional discharge
but not a full discharge. Christopher Schiffer, the clinical director of MSOP at St. Peter,
testified that a full discharge would be premature because Fugelseth need s to complete
community-based sex -offender treatment. The commissioner also called Fugelseth to
testify about the assessments in MSOP’s quarterly treatment-progress reports.
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In July 2017, the judicial appeal panel issued a 32-page order and memorandum in
which it granted Fugelseth’s petition for a full discharge . The panel concluded that
Fugelseth satisfied the statutory discharge criteria because the commissioner had not
proved by clear and convincing evidence that Fugelseth is still in need of inpatient
treatment and supervision or that Fugelseth is still dangerous to the public. The panel also
concluded that Fugelseth’s continued commitment would be unconstitutional. The
commissioner appeals.
ISSUES
I. If an SDP or an SPP petitions for a full discharge from civil commitment,
must the commissioner prove that the committed person continues to be in need of inpatient
treatment and supervision?
II. Did the judicial appeal panel err by findin g that Fugelseth is no longer
dangerous to the public?
ANALYSIS
The commissioner argues that the district court erred by granting Fugelseth’s
request for a full discharge for two reasons. First, the commissioner argues that the judicial
appeal panel erred in its interpretation of the statute governing full discharge and, thus,
erred by finding that Fugelseth is no longer in need of inpatient treatment and supervision.
Second, the commissioner argues that the judicial appeal panel erred by finding that
Fugelseth is no longer dangerous to the public.1

1The commissioner also makes a third argument, that the judicial appeal panel erred
by finding that “ specific conditions exist to provide a reasonable degree of protection to
the public.” See Minn. Stat. § 253D.31 (2016). An appellate court generally will not
consider an argument that was not preserved by being presented to a district court. Thiele
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Fugelseth was civilly committed as an SDP and an SPP. A person who is committed
as an SDP or an SPP may petition the special review board for a reduction in custody .
Minn. Stat. § 253D.27, subd. 2 (2016). The term “reduction in custody” encompasses both
provisional discharge and full discharge. Id., subd. 1(b). The legislature has specified
certain criteria for a full discharge:
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 [1] is capable of making an acceptable adjustment to
open society, [2] is no longer dangerous to the public, and
[3] 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.

Minn. Stat. § 253D.31 (2016).
The parties generally agree that these statutory criteria must be applied in a manner
that respects a committed perso n’s constitutional rights . T hey further agree that the
supreme court’s opinion in Call v. Gomez, 535 N.W.2d 312 (Minn. 1995), applies, although

v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); Doe 175 v. Columbia Heights Sch. Dist., 842
N.W.2d 38, 42-43 (Minn. App. 2014). The preservation requirement applies with full force
in appeals from decisions of the judicial appeal panel. See In re Kropp, 895 N.W.2d 647,
653 (Minn. App. 2017) , review denied (Minn. Jun e 20, 2017) . In this case, t he
commissioner did not make the third argument to the judicial appeal panel. Because the
commissioner did not dispute the issue and did not prompt the judicial appeal panel to
resolve the issue, the commissioner forfeited the argument. Accordingly, this court will
not consider the issue for the first time on appeal.
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they disagree about the precise manner in which it applies. Nonetheless, the commissioner
acknowledges that, in light of Call, the first paragraph of section 253D.31 must be applied
in a manner that ensures that an SDP or an SPP is “discharged if no reasonable relation
exists between the original reason for commitment and the continued confinement.” See
id. at 319. To fulfill that principle, the Call court held as follows:
So long as the statutory discharge criteria are applied in
a way that the person subject to commitment . . . is confined
for only so long as he or she continues both [1] to need further
inpatient treatment and supervision for his sexual disorder and
[2] to pose a danger to the public , continued commitment is
justified.

Id. The commissioner notes that, in essence, the Call court held that the first requirement
in the first paragraph of section 253D.31 (that the committed person be “capable of making
an acceptable adjustment to open society”) no longer applies. See id. Accordingly, under
Call, a person committed as an SDP or an SPP must be fully discharged from his civil
commitment unless he “[1] continues to need inpatient treatment and supervision . . . and
[2] continues to be a danger to the public.” See id.
As a procedural matter, a person who seeks a full discharge from civil commitment
bears an initial burden of production, which requires “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) (2016);2 see also Coker v. Jesson , 831 N.W.2d 483, 48 5-86 (Minn. 2013)

2In 2013, t he legislature recodified the statutes governing full discharge and
provisional discharge . See 2013 Minn. Laws ch. 49 , at 1 -19 (codified at Minn. Stat.
ch. 253D). Fugelseth petitioned for provisional discharge before the 2013 recodification.
Nonetheless, we apply the current versions of the relevant statutes because, for purposes
of this case, the legislature merely clarified pre -existing law without making any
substantive changes. See Coker v. Jesson , 831 N.W.2d 483, 48 6 & n. 2 (Minn. 2013) ;
Braylock v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012).
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(reviewing denial of petition for provisional discharge) . If the committed person satisfies
that burden of production, then “the party opposing discharge . . . bears the burden of proof
by clear and convincing evidence that the discharge . . . should be d enied.” Minn. Stat.
§ 253D.28, subd. 2(d); see also Coker, 831 N.W.2d at 486.
This court applies a clear -error standard of review to a judicial appeal panel’s
findings of fact by “examining the record to determine whether the evidence as a whole
sustains the panel’s findings. ” In re Kropp, 895 N.W.2d 647, 650 (Minn. App. 2017)
(reviewing denial of petition for provisional discharge) , review denied (Minn. June 20,
2017). In doing so, “we do not reweigh the evidence,” and “it is immaterial that the record
might also provide a reasonable basis for inferences and findings to the contrary.” Id. In
addition, we apply a de novo standard of review to issues of statutory interpretation and to
a judicial appeal panel’s application of the law to the facts of a particular case. Id.
I.
The commissioner argues that the judicial appeal panel erred in its interpretation of
the statute governing full discharge. Specifically, the commissioner argues that the judicial
appeal panel erred by requiring the commissioner to prove that Fugelseth is “in need of
inpatient treatment and supervision.” See Minn. Stat. § 253D.31 (emphasis added). The
commissioner contends that the judicial appeal panel should have re quired her to prove
merely that Fugelseth is in need of treatment and supervision of any type, inpatient or
otherwise.
The commissioner initially attempts to justify her interpretation of section 253D.31
by contending that the supreme court in Call construed a predecessor statute by eliminating
the modifier “ inpatient” so that the statute asked only whether a committed person is no
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longer in need of “treatment and supervision.” This contention is based on the fact that, in
certain portions of the Call opinion, the supreme court referred to the statute’s use of the
word “treatment” without using the modifier “inpatient.” See Call, 535 N.W.2d at 318-19.
In four other portions of the Call opinion, however, the supreme court retained the modifier
“inpatient” when referring to the statute’s use of the word “treatment” or the phrase
“treatment and supervision.” See id. at 317, 319. It appears to this court that the supreme
court did not omit the word “inpatient” for the purpose of construing the phrase “treatment
and supervision” more broadly than the plain meaning of the language used by the
legislature. The supreme court did not explain why the word “inpatient” sometimes was
omitted and did not otherwise call attention to it . See id. Consequently, we do not read
the Call opinion as eliminating the word “inpatient” from the predecessor statute and, thus,
do not read Call to require the elimination of the word “inpatient” from the present statute.
Thus, the judicial appeal panel’s interpretation of the first paragraph of section 253D.31 is
not inconsistent with Call.
The commissioner next contends that, if the first paragraph of section 253D.31 is
interpreted as written to mean “inpatient treatment and supervision,” the statute would be
“irreconcilable with” other statutes within chapter 253D, such as sections 253D.07,
253D.14, and 253D.30. The commissioner urges us to resolve the asserted
irreconcilabilities by allowing the latter-enacted statutes (sections 253D.07, 253D.14, and
253D.30) to prevail. The commissioner also contends that a straightforward interpretation
of the plain meaning of the first paragraph of section 253D.31 would be absurd. The
commissioner explains that, if a full discharge must be granted in any case in which
inpatient treatme nt and supervision is no longer needed, there would be no purpose in
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section 253D.30, which provides for provisional discharge, because any person who
satisfies the requirements of provisional discharge would not need inpatient treatment,
which would mean that any such person also would satisfy the requirements of full
discharge.
To resolve these contentions, we would need to interpret the first paragraph of
section 253D.31. “The first step in statutory interpretation is to determine whether the
statute’s language, on its face, is ambiguous.” State v. Thonesavanh, 904 N.W.2d 432, 435
(Minn. 2017). “‘A statute is ambiguous only if it is subject to more than one reasonable
interpretation.’” Id. (quoting 500, LLC v. City of Minneapolis , 837 N.W.2d 287, 29 0
(Minn. 2013) ). If a statute is unambiguous, “then we must apply the statute ’s plain
meaning.” State v. Nelson, 842 N.W.2d 433, 436 (Minn. 2014) (quotation omitted). But
if a statute is ambiguous, “ then we may apply the canons of construction to resolv e the
ambiguity.” Thonesavanh, 904 N.W.2d at 435.
We proceed by asking whether the text of the first paragraph of section 253D.31
provides that a person committed as an SDP or an SPP must be fully discharged if he is no
longer in need of inpatient treatment and supervision, as Fugelseth contends, or if he is no
longer in need of any treatment and supervision , as the commissioner contends . On that
issue, the statute is unambiguous: according to its plain meaning, an SDP or an SPP should
receive a full discharge (assuming all other requirements are satisfied) if he “is no longer
in need of inpatient treatment and supervision.” Minn. Stat. § 253D.31 (emphasis added).
Because the statute is unambiguous, “we must apply the statute’s plain meaning.” Nelson,
842 N.W.2d at 436.
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As stated above, the commissioner contends that the plain meaning of the phrase
“inpatient treatment and supervision” is irreconcilable with other statutes and is absurd.
We question whether we may analyze the issues of irreconcilability and absurdity without
determining that the statute is ambiguous. Compare Thonesavanh, 904 N.W.2d at 436-37
(applying extrinsic canon after determining statute to be ambiguous), with Nielsen v. 2003
Honda Accord , 845 N.W.2d 754 , 756-58 (Minn. 2013) (analyzing irreconcilab ility
argument without determination of ambiguity). We also question whether section 253D.31
actually cannot be reconciled with the other statutes identified by the commissioner.
Regardless, we need not resolve those questions because we are not at liberty to construe
section 253D.31 in the manner urged by the commissioner . To do so would result in a
discharge standard that is more stringent than what is allowed by the United States
Constitution, as interpreted by Call. To reiterate, the Call opinion states that statutory
discharge criteria must be applied in a manner that ensures that a committed person is
“discharged if no reasonable relation exists between the original reason for commitment
and the continued confin ement.” Call, 535 N.W.2d at 319. The Call opinion stated a
corollary rule:
So long as the statutory discharge criteria are applied in
a way that the person subject to commitment . . . is confined
for only so long as he or she continues both [1] to need further
inpatient treatment and supervision for his sexual disorder and
[2] to pose a danger to the public, continued commitment is
justified.

Id. The commissioner concedes that Call applies to a person committed as an SDP or an
SPP. The Call opinion provides that, as a matter of constitutional law, a person committed
as an SDP or an SPP must be discharged if he no longer needs “inpatient treatment and
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supervision.” Id. at 318 -19. In light of Call, we believe that t he commissioner’s
interpretation of sect ion 253D.31 would cause Fugelseth’s continued commitment to
violate his constitutional rights.
Thus, the judicial appeal panel correctly interpreted the first paragraph of section
253D.31. The commissioner concedes that she did not present evidence capable of proving
that Fugelseth is “ in need of inpatient treatment and supervision .” See Minn. Stat.
§ 253D.31 (emphasis added) . Accordingly, the judicial appeal panel did not err by
concluding that the commissioner failed to satisfy her burden of persuasion on the question
whether Fugelseth is no longer in need of inpatient treatment and supervision.
II.
The commissioner also argues that the judicial appeal panel erred by finding that
Fugelseth is no longer dangerous to the public.
The judicial appeal panel heard testimony from two forensic psychologists: Herbert,
who was called by Fugelseth, and Kunkel, who was called by the commissioner . Herbert
testified that she relied on various risk -assessment tools (namely, the Static -99R, the
Stable-2007, the Acute -2007, and the SAPROF) to predict Fugelseth’s likelihood of
reoffending, which she estimated to be 15.2 percent over five years. Herbert acknowledged
that Fugelseth had reported “interest and/or thoughts of children and/or adolescents” and
was diagnosed with pedophilic disorder, and she testified that Fugelseth’s diagnosis would
be “present and lifelong” and that he would always require support. But Herbert testified
that Fugelseth had means of mitigating the risk of reoffending. She opined that, in light of
Call, “Fugelseth has met the criteria for a full discharge.”
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Kunkel testified that he also relied on a risk-assessment tool (the VRS:SO) to predict
Fugelseth’s likelihood of reoffending, which he estimated to be 12.7 percent over five
years. Kunkel testified that Fugelseth “has a deviant sexual preference” and “a history of
sexual compulsivity ” and that his past sexual misconduct involved planning and
manipulation. Kunkel acknowledged that Fugelseth must “manage the deviance, [but] not
necessarily cure it” and that he has been applying treatment methods to accomplish that
goal. Kunkel testified that Fugelseth’s risk of reoffending had declined and that he
continues to make progress but that he nevertheless needs monitoring and treatment.
Kunkel opined that the logical next step was provisional discharge, not full discharge.
In a memorandum attached to its order, the judicial appeal panel found that
Fugelseth has a low risk of recidivism, has had privileges in the community on a regular
basis without incident, has a strong support network, and has completed all recommended
treatment programming. The judicial appeal panel concluded, “The Commissioner has
failed to show by clear and convincing evidence that Petitioner is a danger to the public.”
On appeal, the commissioner contends that the judicial appeal panel’s findings and
conclusions are inconsistent with the evidence. For example, the commissioner contends
that the panel misinterpreted Kunk el’s testimony concerning whether high -risk offenders
have “the best prognosis” or “a good prognosis,” whether Hebert’s or Kunkel’s estimated
recidivism rate was lower than the other, and whether Fugelseth is in a “low” or “low -
moderate” risk category. These issues were not determinative in the panel’s assessment of
the evidence, either individually or collectively.
The commissioner fu rther contends that, in light of the judicial appeal panel’s
erroneous understanding of the factual record, she did prove by clear and convincing
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evidence that Fugelseth still is danger ous to the public. This contention is contrary to the
principles that “we do not reweigh the evidence” and that “it is immaterial that the record
might also provide a reasonable basis for inferences and findings to the contrary.” See
Kropp, 895 N.W.2d at 650. The question is not whether the record could support a finding
that Fugelseth still is danger ous to the public; the question is whether the judicial appeal
panel clearly erred by finding that Fugelseth no longer is danger ous to the public. See id.
The judicial appeal panel considered conflicting evidence and determined that Herbert’s
testimony was entitled to more weight than Kunkel’s testimony. This court generally will
“defer to a district court’s evaluation of expert testimony.” In re Commitment of Navratil,
799 N.W.2d 643, 648 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011).
Furthermore, the panel reasonably relied on Fugelseth’s testimony that he would continue
out-patient treatment and would utilize his support network.
Thus, the judicial appeal panel did not clearly err by finding that Fugelseth is no
longer dangerous to the public.
D E C I S I O N
The judicial appeal panel did not err by granting Fugelseth’s request for a full
discharge.
Affirmed.