State of Minnesota, ex rel. Antwone Ford,

1

STATE OF MINNESOTA

IN SUPREME COURT

A17-1895

Court of Appeals Anderson, J.

State of Minnesota,
ex rel. Antwone Ford,

Appellant,

vs. Filed: September 11, 2019
Office of Appellate Courts
Paul Schnell,
Commissioner of Corrections,

Respondent.

________________________

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, Saint Paul, Minnesota, for appellant.

Keith Ellison, Attorney General, Rachel E. Bell -Munger, Kelly S. Kemp, Assistant
Attorneys General, Saint Paul, Minnesota, for respondent.
________________________
S Y L L A B U S
1. The claims presented by a ppellant’s petition for a writ of habeas corpus are
justiciable.
2. A writ of habeas corpus is an appropriate procedural remedy when an agency
fails to adhere to binding judicial precedent and, as a result, restrains a petitioner’s liberty.

2

3. Because the Department of Corrections failed to adhere to the rule of law
announced in State ex rel. Marlowe v. Fabian , 755 N.W.2d 792 (Minn. App. 2008) , the
district court properly granted the writ and imposed an appropriate remedy.
Reversed.
O P I N I O N
ANDERSON, Justice.
Appellant Antwone Ford petitioned the district court for a writ of habeas corpus ,
asserting that r espondent Commissioner of Corrections unlawfully extended his
incarceration for approximately 16 months after his conditional -release term began.
Specifically, Ford asserted that the Department of Corr ections (Depar tment) failed to
approve housing in a community in which he could be supervised . Following an
evidentiary hearing, t he district court determined that the Department failed to adhere to
the law announced in State ex rel. Marlowe v. Fabian, 755 N.W.2d 792 (Minn. App. 2008),
and granted Ford’s petition for a writ, ordering the Department to either approve housing
for Ford or modify the terms of his conditional release. The court of appeals vacated the
district court’s order as moot. State ex rel. Ford v. Roy, No. A17-1895, 2018 WL 3097717,
at *8 (Minn. App. June 25, 2018). Because we conclude that Ford’s claims are justiciable,
and to provide Ford with timely relief, we issued an order reversing the court of appeals
and reinstating the district court’s order. State ex rel. Ford v. Schnell, No. A17-1895, Order
at 2–3 (Minn. filed May 10, 2019). The following opinion sets forth the basis for our
decision.

3

FACTS
This appeal raises issues regarding the supervision of offenders in the community.
Generally, a prison sentence in Minnesota consists of two terms. The “term of
imprisonment” is typically the first two -thirds of the sentence, with a supervised-release
term comprising the remaining one-third of the sentence. See Minn. Stat. § 244.101, subd.
1 (2018); see also Heilman v. Courtney , 926 N.W.2d 387, 394 (Minn. 2019) (explaining
that “felons generally serve sentences in two parts”) . Certain classes of offenders,
including some sex offenders, also must complete an additional term of “conditional
release.” See, e.g., Minn. Stat. § 609.3455, subds. 6–7 (2018). “[C]onditional release of
sex offenders is governed by provisions relating to supervised release.” Id., subd. 8(a)
(2018); see also State ex rel. Duncan v. Roy , 887 N.W.2d 271, 272 n.1 (Minn. 2016 )
(“Functionally, conditional release is identical to supervised release.”). If an inmate
violates the release conditions, which are imposed by the Department, that release can be
revoked and the offender returned to prison. Minn. Stat. § 244.05, subd. 3(2) (2018).
While on supervised or conditional release , an offender is on some form of
supervision, either standard or intensive. See id., subd. 6(a) (2018). If an offender is
designated as a Level III sex offender, intensive supervised release is required. Id. This
form of supervision involves rigorous conditions , ranging from electronic surveillance,
house arrest, and curfew conditions, to random checks, searches, and drug tests, to
prohibitions on internet access or access to social media . See id., subd. 6(b)–(c) (2018).
Offenders subject to intensive supervised release must have an approved residence during
the release term because house-arrest conditions are necessary . Accordingly, the

4

Department’s policies require offenders on intensive superv ised release to reside in an
agent-approved residence.
We now turn to the facts of Ford’s case.
In 2008, Ford was convicted of third-degree criminal sexual conduct, see Minn. Stat.
§ 609.344, subd. 1(b) (2006), in Blue Earth County. The district court sentenced Ford to
three years of imprisonment, stayed for 15 years, and imposed a 5-year conditional-release
term. In 2013, Ford’s sentence was executed, and he was committed to the custody of the
Department.1 In January 2014, the Department placed Ford on supervised release. At first
he lived in a Department -funded residence in Mankato, but within a few months, he
relocated to a private residence.
In August 2014, the Department revoked Ford’s supervised release for a violation
of his release conditions. His supervised-release term expired in February 2015 , and he
became eligible for conditional release . On the day Ford was released from prison ,
however, he was transferred to the Blue Earth County jail because he did not have approved
housing in Blue Earth County. Although Ford searched for housing and made phone calls
from the jail, he was unable to find approved housing. The Department revoked his release
for 90 days and Ford was returned to prison.
In June 2015, the Department assigned Ford to another 90 days of incarceration
because he still did not have approved housing in Blue Earth County. Although Ford
requested a placement in Ramsey County , th e county declined to provide courtesy
supervision due to Ford’s lack of historical ties to that area.

1 Ford’s sentence, including his conditional-release term, expired on July 19, 2019.

5

In August 2015, Ford was released from prison to the Renville County jail for
chemical dependency treatment, which he completed at the end of October 2015. He was
returned to prison for 179 days because he still did not have approved housing in Blue
Earth County. During this period of time, t he Department unsuccessfully attempted to
arrange several housing placements for Ford, including with his aunt in Wisconsin, his
previous landlord in Mankato, his mother and sister in Fargo, and his brother in Moorhead.
Ultimately, the Department concluded that Ford’s status as a Level III sex offender made
finding approved housing options difficult.
In April 2016, the Department extended Ford’s incarceration by another 150 days.
Two possible housing placements in Ramsey County were rejected due to “lack of ties and
a concentration of [level-three] offenders” in the area. The Department was aware that
Ford wished to return to the residence in Mankato, but a Mankato city ordinance prevented
the placement.2
In May 2016, Ford petitioned for a writ of habeas corpus in district court, arguing
that the Department unlawfully extended his incarceration based on an illegal city
ordinance. The district court denied Ford’s petition because he did not, and could not, join
the City of Mankato as a party to the habeas petition. Ford appealed.
The court of appeals reversed. State ex rel. Ford v. Roy , No. A16 -1769, Order
(Minn. App. filed Feb. 1, 2017). Relying on State ex rel. Marlowe v. Fabian, 755 N.W.2d

2 Ford filed an administrative appeal of the April 2016 decision to extend his
incarceration and requested immediate release to the Mankato residence. He argued,
unsuccessfully, that state law preempted the Mankato ordinance and the ordinance violated
his due process rights.

6

792, 795 (Minn. App. 2008), the court of appeals concluded that although the Department
was not required to find approved housing for Ford, it was required to provide assistance,
which may require consideration of housing options for Ford in counties other than Blue
Earth County. Roy, No. A16-1769, Order at 4. The court of appeals remanded the case to
the district court “to permit the [Department] to develop the record with respect to what
other housing options, including halfway ho uses, are available to Ford ,” and warned that
if no suitable housing options are available, the Department was “required to consider
restructuring the conditions of release .” Id. (emphasis added). The Department did not
petition for our review.
On February 22, 2017 , two days before the remanded case was scheduled for a
hearing and two years after Ford began his conditional -release term , the Department
released Ford from incarceration to Alpha House, a residential sex offender treatme nt
program and residence in Hennepin County. The Department argued that Ford’s release
to Alpha House made his request for habeas corpus relief moot. Ford asserted that his
habeas petition was not moot because the district court should still determine whether the
Department “must consider restructuring the conditions of release to allow him to be
released either to the [intensive supervised release] house in Mankato or to any other
suitable residence regardless of [the] county.” The district court ultimately proceeded with
the evidentiary hearing based on the instructions from the court of appeals. Moreover,
Ford’s release to Alpha House, which the district court did not consider to be a permanent
residence, did not make Ford’s claims moot. The district court explained:
It is unclear how long [Ford] will be permitted to remain there; it is also
unclear what will happen to him when he can no longer remain there.

7

Because he remains subject to being re -incarcerated for lack of approved
housing, and because his present ho using situation is contingent, uncertain,
and temporary at best, the question of what the Department of Corrections
has done to assist him in obtaining suitable housing is not moot.

During the evidentiary hearing , Department witnesses testified regarding the
Department’s responsibilities and policies for the supervision of offenders on release ,
including supervision provided by Community Corrections Act (CCA) counties. 3
Department witnesses explained that an offender is not required to reside in any particular
county. In general, an offender’s case manager works with the offender to determine
residency options, including suitable housing placements, and requests a supervising agent
from the proposed county of placement or the county in which the offender has historical
ties or community support. If neither of those options are viable, the local corrections
agency in the county of commitment is responsible for the offender’s release planning,
which includes arranging and funding the housing placement in an y county. Once the
agent-assignment request is made, the county of referral has 15 days to assign the case to
an agent, who then has 30 days to investigate the release plan . If a county rejects a
placement request, supervision of the offender returns to the county responsible for
assisting with the offender’s release planning.
Testimony at the evidentiary hearing identified several reasons why CCA counties
may refuse to assign agents to supervise an offender, including a belief that the level-three
sex-offender concentration in th e area is too high , residency restrictions, rental-licensing

3 The CCA authorizes the Department , a st ate agency, to subsidize and coordinate
with counties to supervise offenders on conditional release. See Minn. Stat. §§ 401.01–.16
(2018). A “CCA county” “means a county that participates in the Community Corrections
Act.” Minn. Stat. § 401.01, subd. 2(b).

8

issues, and the presence of other felons living in the same residence. The Department has
the option to use informal resolution methods to reach supervision agreements with CCA
counties, ranging from discussion among supervisors and agents, to reducing the funding
for a CCA count y. Hearing officers from the Department will not dictate a housing
placement for an offender, modify conditions of release, or secure a new agent assignment.4
Based on the record from the evidentiary hearing, it appears that the Department
routinely declines to order the release of an offender to an available housing placement if
a CCA county objects. The Department also refuse s to engage counties in informal
resolution efforts. For example, Ford’s placement request in Ramsey County never went
beyond the county’s rejection of Ford’s proposed residences. Ford’s case manager testified
during the evidentiary hearing that she never receiv ed training for or participated in the
informal resolution process, and could not identify anyone in the Department who had

4 Department witnesses testified that Department agents generally do not supervise
offenders in CCA counties because the Department does not have the budget or resources
to do so. By statute, a portion of the funds allocated for community supervision programs
must be used for CCA county programs.
The commissioner shall locate the programs [for providing intensive
supervised release] so that at least one-half of the money appropriated for the
programs in each year is used for programs in Community Corrections Act
counties. In awarding contracts for intensive supervision programs in
Community Corrections Act counties, the commissioner shall give first
priority to programs that utilize county employees as intensive supervision
agents and shall give second priority to programs that utilize state employees
as intensive supervision agents.
Minn. Stat. § 244.13, subd. 1 (2018). Testimony during the evidentiary hearing established
that funding for intensive supervised release is split evenly between the D epartment and
CCA counties. See also Minn. Stat. § 244.056 (2018) (providing that a supervision transfer
request must be made when “a corrections agency supervising an offender who is required
to register as a predatory offender . . . has knowledge that the offender is seeking housing
arrangements in a location under the jurisdiction of another corrections agency”).

9

participated in such a process. Informal discussions with CCA counties about placement
possibilities are “rare,” according to the case manager. Although a county agent was
temporarily assigned to supervise Ford at Alpha House in Hennepin County , once he
completes the residential portion of the program, the county’s courtesy supervision will
end. In fact, Ford’s current supervision agent testified during the evidentiary hearing that
his assignment will end if and when Ford is released from treatment into the community.
Therefore, if Ford wants to continue living in Hennepin County when he completes the
treatment program at Alpha House , h e will need to submit a supervision request to
Hennepin County, which , according to Department witnesses who testified during the
evidentiary hearing, has the authority to refuse the request. The end result is that Ford will
ultimately return to prison.5
The district court granted Ford’s petition for a writ of habeas corpus ,6 finding that
the Department violated Marlowe by refusing to modify his conditions of release and
instead “act[ing] as mere scriveners, simply documenting release-planning efforts” despite

5 Ford testified during the evidentiary hearing that he located a Ramsey County
landlord through a fellow inmate and that the landlord was w illing to rent to him. This
proposed placement was not pursued, Ford testified, because his case manager told him
that Ramsey County, like Hennepin County, was not accepting supervision of any more
Level III offenders. Ford’s testimony was supported by the testimony of his case manager,
who acknowledged that Ramsey County would not consider a proposed placement unless
the offender was convicted in that county. Ford does not believe that he can complete the
second phase of the Alpha House treatment program in Hennepin County because of his
difficulty with finding approved housing. This, in turn, impacts Ford’s ability to complete
treatment, which is a condition of his release. Ford testified that he expects to return to
prison, the prospect of which is s tressful, particularly because his ability to complete
treatment is a struggle.

6 The district court did not address Ford’s other claims , which were not part of the
remand instructions from the court of appeals.

10

his inability to locate approved housing in the community. The district court also found
that the Department failed to follow its own internal policy for finding placements, instead
using “an informal practice of treating the county of commitmen t, not the county of
proposed residence, as the presumptive release jurisdiction, even when an offender has a
proposed residence in another county,” and not “engaging the dispute resolution process.”
The district court concluded that absent enforcement of its own policies, the Department
effectively set Ford up for failure, particularly in light of testimony indicating that
Hennepin County was likely to refuse to supervise Ford when he finished the Alpha House
program. The district court ordered the Department to fully comply with its policy and the
dictates of Marlowe by treating either Hennepin County or Ramsey C ounty as Ford’s
presumptive release jurisdiction. If, after dispute resolution, either county decline d to
accept supervision of Ford, then the district court ordered the Department to “provide
[Department] supervision in that county, or modify Ford’s conditions of release.”
The Department appealed the district court’s order granting Ford a writ of habeas
corpus. The court of appeals reversed , concluding that Ford’s request for relief became
moot when he was released from Alpha House . State ex rel. Ford v. Roy, No. A17-1895,
2018 WL 3097717, at *8 (Minn. App. June 25, 2018). The court of appeals concluded that
Ford was not suffering from a “direct or imminent injury” because “Hennepin County has
not yet refused to supervise him ,” and no mootness exceptions applied. Id. at *4, *8.
Although the court of appeals questioned whether the Department’s conduct was causing
the issue to evade review, it was “not yet willing to make that determination on this record

11

and the limited cases to date.” Id. at *6. Moreover, the court of appeals determined that
the issue was not of statewide significance and did not require an immediate decision. Id.
We granted Ford’s petition for review and initially stayed his appeal pending our
decision in a factually similar dispute, State ex rel. Leino v. Roy , 910 N.W.2d 477 (Minn.
App. 2018), rev. granted (Minn. July 27, 2018), appeal dismissed as improvidently granted
sub nom. State ex rel. Leino v. Schnell, No. A17-1278, Order (Minn. filed May 10, 2019).
After argument in Leino, we lifted the stay in this case, ordered briefing, and held oral
argument.
ANALYSIS
Broadly, this case presents three issues . The thres hold issue is whether Ford’s
release to Alpha House rendered his request for a writ of habeas corpus moot or otherwise
nonjusticiable. Next, we address whether the writ of habeas corpus provides appropriate
procedural relief under the circumstances of this case . Last ly, we consider whether the
Department failed to adhere to the law .7 We consider questions of law under a de novo
standard of review, see State v. Wukawitz, 662 N.W.2d 517, 525 (Minn. 2003), but afford
“great weight” to the district court’s findings of fact , State ex rel. Kons v. Tahash , 161
N.W.2d 826, 832 (Minn. 1968).

7 The Department is correct that Ford’s initial habeas petition did not raise the
Marlowe issue, which is central to this appeal. But the Department’s forfeiture argument
comes too late. See Sigurdson v. Isanti Cty ., 448 N.W.2d 62, 66 (Minn. 1989) (“Law of
the case applies when the appellate court has ruled on a legal issue and remanded for further
proceedings on other matters. The issue decided becomes ‘law of the case’ and may not
be . . . reexamined in a second appeal.”).

12

I.
We begin with the question of justiciability, starting with mootness, the basis on
which the court of appeals dismissed the appeal in this case. An appeal is moot when “a
decision on the merits is no longer necessary or an award of effective relief is no longer
possible.” Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn. 2015); see also Kahn v. Griffin,
701 N.W.2d 815, 821 (Minn. 2005) (stating that a case should be dismissed as moot when
the court is “unable to grant effectual relief”). Whether Ford’s request for relief via the
writ of habeas corpus is moot is a question of law, which we review de novo. See Dean,
868 N.W.2d at 4.
The competing considerations bearing on this issue are best framed by the
arguments of the parties . The Department argues that Ford’s petition is moot because he
has received his requested relief: release from prison . Ford counters that his release is
temporary because the Department is supervising him in the community on a “courtesy ”
basis only. According to Ford , Hennepin County is unlikely to agree to supervise him
when he is released from Alpha House , so he is likely to return to prison unless he can
secure some other agreement for courtesy supervision. The Department , in response,
contends that Ford’s argument presents a ripeness problem, noting that “[h]abeas relief is
not available for decisions that have not been made .” See State ex rel. McMonagle v.
Konshak, 162 N.W. 353, 353 (Minn. 1917) (“The writ of habeas corpus is not designed to
secure immunity from imprisonment at some future time, but only to secure release from
present enforced imprisonment or restraint.” ). The court of a ppeals agreed with the
Department, concluding that Ford’s petition for a writ of habeas corpus was moot based on

13

a lack of “direct or imminent injury” to Ford because “Hennepin County has not yet refused
to supervise him.” Ford, 2018 WL 3097717, at *4.
Ripeness considers when a dispute may be brought. See McKee v. Likins , 261
N.W.2d 566, 569–70 n.1 (Minn. 1977); see also State v. Murphy , 545 N.W.2d 909, 917
(Minn. 1996) (explaining that a r ipe dispute presents “a substantial and real controversy
between the parties” based on a “direct and imminent injury”). Both mootness and ripeness
are relevant to the question of justiciability, and an “essential” part of the analysis is
whether “a direct personal interest of [the] complainant [is] placed in jeopardy.” State ex
rel. Smith v. Haveland, 25 N.W.2d 474, 478 (Minn. 1946). The personal interest must exist
at the outset and during the proceedings. Dean, 868 N.W.2d at 4 –5. “Issues which have
no existence other than in the realm of future possibility are pu rely hypothetical and are
not justiciable.” Lee v. Delmont , 36 N.W.2d 530, 537 ( Minn. 1949). For example, an
individual who challenges the constitutionality of a statute must show that the statute “is,
or is about to be, applied to his disadvantage.” McCaughtry v. City of Red Wing , 808
N.W.2d 331, 338 (Minn. 2011) (citation omitted) (internal quotation marks omitted). But
we do not apply the doctrines of justiciability mechanically. See Dean, 868 N.W.2d at 4.
In this case, we conclude that Ford’s habeas petition is not moot, and his request for
relief presents a sufficiently ripe question. In reaching this conclusion , we rely on and
afford great weight to the findings of the district court. Specifically, the district court found
that Hennepin County is likely to refuse to supervise Ford after his time at Alpha House
ends, and the Department will not provide courtesy supervision if he remains in that county.
Furthermore, the district court found that if Hennepin County refuses to supervise Ford,

14

the Department is likely to revoke his release, as it has done in the past, based on his failure
to have an agent-approved residence, and Ford will return to prison, as he has in the past .
Finally, the district court found that the Department ’s unwillingness to enforce its own
policies by requiring Hennepin County to accept supervision intentionally sets Ford up for
failure. These findings by the district court have ample support in the record, and many of
the facts are undisputed.
Thus, substantial evidence leads us to conclude that the likelihood of Ford being
sent back to prison is not “purely hypothetical,” Lee, 36 N.W.2d at 537, and his interest in
remaining in the community rather than returning to prison is still “in jeopardy,” Haveland,
25 N.W.2d at 478, despite his temporary release. Cf. Hensley v. San Jose Mun. Ct., 411
U.S. 345, 352 (1973) (“This is not a case where the unfolding of events may render the
entire controversy academic.”). As put by the district court, Ford’s housin g situation is
“contingent, uncertain, and temporary at best,” and his return to prison for a lack of suitable
housing is not so much a matter of if but when. Because Ford’s release is only temporary,
and because he faces a nonspeculative threat of returning to prison , we hold that Ford’s
petition for a writ of habeas corpus is not moot and his request for relief on the petition is
ripe for decision.
Our holding is neither unique nor without precedent. 8 Other courts have held that
the writ of habeas corpus is an appropriate means to challenge future incarceration. See,

8 The Department relies on our decision in Konshak, where we stated that “[t]he writ
of habeas corpus is not designed to secure immunity from imprisonment at some future
time, but only to secure release from present enforced imprisonment or restraint.” 162
N.W. at 353. Our decision in Konshak is factually distinguishable because the petitioner
in Konshak was on bail, which entailed the “voluntary surrender of himself to the custody

15

e.g., Preiser v. Rodriguez, 411 U.S. 475, 487 (1973) (“[H]abeas corpus relief is not limited
to immediate release from illegal custody, but . . . the writ is available as well to attac k
future confinement and obtain future releases.”) ; Carroll v. Johnson , 685 S.E.2d 647,
651–52 (Va. 2009) (holding that habeas relief is not limited to situations in which a
favorable result will mean the petitioner’s immediate release). Certainly, other courts have
required imminent incarceration. See United States v. Ross , 801 F.3d 374, 379 (3d Cir.
2015) (“[R]estraints on the [habeas] petitioner must be (1) severe, (2) immediate ( i.e., not
speculative), and (3) not shared by the public generally.”); Gonzalez-Fuentes v. Molina ,
607 F.3d 864, 874 n.8 (1st Cir. 2010) (“We recognize that a future restraint on liberty may
provide a basis for habeas jurisdiction if it is imminent and inevitable.”); Spring v.
Caldwell, 692 F.2d 994, 998 (5th Cir. 1982) (“The existence of an imminent possibility of
incarceration without a formal trial and criminal conviction may create such a restraint on
liberty as to constitute custody [for federal habeas purposes] .”); Roba v. United States ,
604 F.2d 215, 219 (2d Cir. 1979) (“Petitioner need not wait until the marshals physically
lay hands on him; he is entitled now to challenge the allegedly unlawful condit ions of his
imminent custody.” (emphasis added)). In this case, t he evidence establishes that Ford’s
return to prison is imminent and almost inevitable, even if it has not yet occurred.
Further, the statewide significance of these issues demonstrates that they should be
decided now, and t he record in this case confirms that Ford’s case is functionally

of an officer of the law ,” a step taken to “sue out [a] writ of habeas corpus.” Id. In this
case, Ford was not sent back to p rison to procure a writ of habeas corpus. Instead, his
incarceration was continually extended based on the lack of approved housing in the
community. Konshak is inapplicable to the instant case.

16

justiciable. See, e.g., State v. Rud, 359 N.W.2d 573, 576 (Minn. 1984) (explaining that
mootness is a “flexible discretionary doctrine”) . We are mindful that the court of appeals
has identified a “parade of appeals” related to the issue presented in this case. State ex rel.
Young v. Roy , No. A17 -1741, 2018 WL 2407259, at *3 (Minn. App. May 29, 2018)
(emphasis omitted), rev. granted, stayed (Minn. Aug. 21, 2018). A Department witness
with firsthand experience pla cing offenders in the community testified during the
evidentiary hearing that placement was t he biggest release -planning hurdle and rejection
for lack of historical ties happens monthly, affecting up to 15 percent of her caseload. In
the words of the Department witness , “any offender ,” not just a Level III sex offender,
struggles to find housing . Our review of the record convinces us that Ford’s petition
presents an important issue of statewide significance that should be decided now. In
addition, an issue is “functionally justiciable” when the record contains the raw material
traditionally associated with effective judicial decision -making, including a full
presentation of both sides of the issues raised. Dean, 868 N.W.2d at 6. In this case, t he
record is well developed and both parties are represented by attorneys who are well versed
in the law and facts. Therefore, we conclude that Ford’s claims are functionally justiciable
and should be decided now.
II.
We next consider whether habeas corpus, under the circumstances, is an appropriate
procedural remedy. The proper scope of habeas relief presents a question o f law, which
we review de novo. See State ex rel. Savage v. Rigg , 84 N.W.2d 640, 643 (Minn. 1957)
(“After a hearing, the trial court denied petitioner’s application for a writ of habeas corpus,

17

and this appeal followed. The case is here de novo. We have examined the entire
record . . . in order to ascertain whether the petition presents any claim which, if
substantiated by evidence, would entitle petitioner to a writ of habeas corpus.”) ; Breeding
v. Swenson, 60 N.W.2d 4, 6 (Minn. 1953) ( stating that “the matter is now before us for
de novo review to ascertain the sufficiency of his petition”).
The Department argues that habeas relief is not available for an alleged violation of
an internal agency policy. In the absence of a constitutional or statutory violation , the
Department contends that, by granting Ford’s petition for a writ of habeas corpus, the
district court erred as a matter of law.
We disagree for several reasons . First, t he plain language of the habeas corpus
statute lacks the limitations that the Department would have us impose. See Minn. Stat.
§ 589.01 (2018) (providing that “[a] person imprisoned or otherwise restrained of liberty”
may petition for a writ, without stating what kind of illegal restraint the petition must
challenge). The statutory phrase “otherwise restrained of liberty” broadens the scope of
relief available beyond only “a person imprisoned.”
Second, our precedent does not support the Department’s narrow view of habeas
corpus. See, e.g., State ex rel. Cole v. Tahash , 129 N.W.2d 903, 907 ( Minn. 1964) (“Any
unlawful restraint of personal liberty may be inquired into on habeas corpus.” (emphasis
added)); Townsend v. Kendall, 4 Minn. 412, 421, 4 Gil. 315, 325 (1860) (stating that when
someone “attempts to exercise any restraint over the person of any one within this State,
the writ of habeas corpus or any other appropriate remedy will always be effectual to
enquire into the propriety of such attempted restraint ”); see also Jones v. Cunningham ,

18

371 U.S. 236, 243 (1963) (“[The writ of habeas corpus] is not now and never has been a
static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose —the
protection of individuals against erosion of their rig ht to be free from wrongful restraints
upon their liberty .”); In re Bonner, 151 U.S. 242, 259 (1894) (“[I]t should be constantly
borne in mind that the writ was intended as a protection of the citizen from encroachment
upon his liberty from any source.”). Here, the district court found that Ford’s liberty was
restrained by the Department’s failure to abide by its own internal policies and judicial
precedent. See Marlowe, 755 N.W.2d at 797. Certainly an agency is not free to disregard
published and binding judicial precedent. Ithaca Coll. v. NLRB, 623 F.2d 224, 228 (2d Cir.
1980) (“[A]s must a district court, an agency is bound to follow the law of the Circuit.” );
see also St. Margaret Mem’l Hosp. v. N LRB, 991 F.2d 1146, 1154 (3d Cir. 1993) ( “[A]n
administrative tribunal whose findings, conclusions and orders are subject to direct judicial
review by courts of appeals . . . is, of course, bound to follow the precedent of this Court.”).
“It is, emphatically, the province and duty of the judicial dep artment, to say what the law
is,” Marbury v. Madison, 5 U.S (1 Cranch) 137, 177 (1803), and an agency “ignore[s] that
principle at [its] peril,” Hillhouse v. Harris, 715 F.2d 428, 430 (8th Cir. 1983) (per curiam)
(citation omitted) (internal quotation marks omitted). Because judicial precedent is binding
on administrative agenc ies, a writ of habeas corpus is the proper avenue for Ford’s
challenge alleging the Department’s violation of Marlowe.
Third, in reviewing requests for relief via habeas corpus, “our concern is primarily
directed to . . . whether the defendant was denied fundamental constitutional rights.” State
ex rel. Bassett v. Tahash , 116 N.W.2d 564, 565 (Minn. 1962) (emphasis added); see also

19

Beaulieu v. Minn. Dep’t of Human Servs., 798 N.W.2d 542, 548 (Minn. App. 2011) (stating
that a petitioner “may obtain habeas relief only if he can establish that he is restrained
because of a constitutional violation” ), aff’d on other grounds , 825 N.W.2d 716 (Minn.
2013). But “primarily” does not mean “only ,” and our recent decisions reflect a broader
view of our earlier use of “primarily.” See, e.g., State ex rel. Duncan v. Roy, 887 N.W.2d
271, 275 (Minn. 2016) (considering a request for relief via habeas corpus that challenged
the Department’s calculation of a conditional-release term without asserting a
constitutional violation); State v. Schnagl, 859 N.W.2d 297, 303 (Minn. 2015) (stating that
“judicial review of the Commissioner’s administrative decision implementing the sentence
imposed may be obtained by a petition for a writ of habeas corpus in which th e
Commissioner is a named party”).
Finally, we decline to compress the “great writ,” Ex parte Bollman , 8 U.S.
(4 Cranch) 75, 95 (1807) (Marshall, C.J.) , into “a static, narrow, formalistic remedy ,”
Jones, 371 U.S. at 243. The “privilege of the writ of habeas corpus” is found in our
constitution’s bill of rights. Minn . Const. art. I, § 7. The Legislature has recognized that
we have the power to issue all writs “ necessary to the execution of the laws and the
furtherance of justice.” Minn. Stat. § 480.04 (2018) (emphasis added). The express terms
of the Legislature’s grant of power to the district courts to issue writs, see Minn. Stat.
§ 484.03 (2018), is no narrower. In habeas proceedings, courts “may grant relief suited to
the scope of the violation .” State ex rel. Schmelzer v. Murphy , 548 N.W.2d 45, 48
(Wis. 1996); accord Townsend, 4 Minn. at 421, 4 Gil. at 325 (“[U]pon such enquiry [in a

20

habeas corpus proceeding,] the proper Court can make such order or judgment as the case
may require.”).9
Ford argues that the Department’s failure to abide by its internal policies and
binding judicial precedent —specifically, Marlowe—have kept him incarcerated for an
extended period of time. We find Ford’s petition for a writ of habeas corpus to be an
appropriate procedural remedy.
III.
The remaining question is whether the Department failed to adhere to the law set
forth in Marlowe, and if so, whether the relief granted is “suited to the scope of the
violation.” This legal question is subject to de novo review. Collins v. Minn. Sch. of Bus.,
Inc., 655 N.W.2d 320, 329 (Minn. 2003).
The facts of Marlowe are similar to the facts here . Marlowe served a prison term
and on his supervised release date, had no approved residence in the community .
755 N.W.2d. at 793. Like Ford, Marlowe required intensive supervision. Id. When
Marlowe was released from prison, he was transported to the Washington County jail and
the Department charged him with violating the conditions of his release for failing to
procure approved housing . Id. Like the testimony during Ford’s evidentiary hearing,
witnesses from the Department testified during Marlowe’s revocation hearing that the

9 We note that this case does not involve a collateral at tack on Ford’s conviction or
sentence. See State v. ex rel. Baker v. Utecht , 21 N.W.2d 328, 331 (Minn. 1946) (“In the
absence of a denial of due process of law, whereby the court has lost its jurisdiction and its
judgment is void and not merely voidable, a judgment, though otherwise erroneous, cannot
be attacked collaterally under a writ of habeas corpus.”); see also Minn. Stat. § 589.01
(stating that habeas relief is not allowed for “ persons committed or detained by virtue of
the final judgment of a competent tribunal of civil or criminal jurisdiction”).

21

county rejected a proposed supervision plan for Marlowe and the Department declined to
supervise Marlowe in housing “across county lines.” Id. at 793–94. The district court
denied Marlowe’s petition for a writ of habeas corpus. See id. at 794. The court of appeals
reversed. Id. at 797. The court of appeals determined that the Department has the authority
to “restructure” the conditions of an offender’s supervised release when the original
conditions are “unworkable,” but found that the Department “mistakenly believed” that the
only option was to revoke Marlowe’s release despite the availability of “a suitable
residential placement ” in a neighboring county. Id. at 796. The court of appeals
admonished:
At the very least, when a condition becomes unworkable at the time of release
due to circumstances largely outside the control of an offender, the
[Department] must consider a restructure or modification of those
conditions . . . . We therefore conclude that the [Department ] is required to
reconsider its decision to revoke Marlowe’s release. The [Department] must
consider restructuring Marlowe’s release plan and must seek to develop a
plan that can achieve Marlowe’s release from prison and placement in a
suitable and approv ed residence , whether in Washington County or in a
neighboring county.

Id. at 796–97 (emphasis added).10 The court of appeals stated, plainly, that the Department
“has an obligation to fashion conditions of release that are workable and not impossible to
satisfy.” Id. at 793.

10 Ramsey County accepted supervision of Marlowe after the court of appeals filed its
decision. See Marlowe v. Fabian, 676 F.3d 743, 746 (8th Cir. 2012) (noting that Ramsey
County “changed its position and agreed to provide supervision”). Ultimately, Marlowe
sued Department officials under 42 U.S.C. § 1983 for “unlawfully imprisoning him 375
days beyond the date on whic h he became eligible for supervised release.” See 676 F.3d
at 744.

22

In this case, the district court specifically found that the Department “has not met
its obligations to Ford under Marlowe.” Despite Marlowe’s clear holding, the district court
noted that the Department “never modifies offenders’ conditions of release,” acting instead
“as mere scriveners, simply documenting release-planning efforts.”
The Department neither contends that it complied with Marlowe nor asks us to
decline to follow Marlowe. Rather, the Department asks us to remand to the court of
appeals to consider whether the district court’s factual findings are clearly erroneous and
whether it erred as a matter of law by granting habeas relief to Ford. We decline the
Department’s invitation. To return this case for another round of appellate review would
fully thwart the very purpose of the writ. See Wojahn v. Halter , 39 N.W.2d 545, 548
(Minn. 1949) (“[T]he purpose of a writ of habeas corpus is to speedily test the propriety of
the restraint.” (emphasis added)); Northfoss v. Welch, 133 N.W. 82, 84 (Minn. 1911) (“The
office of the writ of habeas corpus is to afford the citizen a speedy and effective method of
securing his release when illegally restrained of his liberty.” (emphasis added)).
We also reject the Department’s attempt to parse Marlowe into pieces. Under
Marlowe, the Department is required to “consider restructuring [the offender’s] release
plan and . . . seek to develop a plan that can achieve [the offender’s] release from prison
and placement in a suitable and approved residence, whether in [the county of
commitment] or in a neighboring county.” 755 N.W.2d. at 797; see also id. at 793 (stating
that the Department “has an obligation to fashion conditions of release that are workable
and not impossible to satisfy” (emphasis added)). The Department’s argument ignores the
clear language and full context of the Marlowe decision. The district court did not err when

23

it found that “mere scriven[ing]” of release -planning efforts does not satisfy the
Department’s obligations under Marlowe.11
The record before us is clear and accurate. “To conclude that ‘[f]indings of fact . . .
are clearly erroneous’ we must be ‘left with the definite and firm conviction that a mistake
has been made.’ ” Rasmussen v. Two Harbors Fish Co. , 832 N.W.2d 790, 797 (Minn.
2013) (quoting In re Stisser Grantor Trust , 818 N.W.2d 495, 507 (Minn. 2012)). The
Department’s challenges to the district court’s findings of fact lack merit, except for one .
The Department argues that the district court misread a website, which led to an error in its
factual findings related to Ramsey County. It appears that the district court mistakenly
used the B ureau of Criminal Apprehension offender locator website rather than the
Department offender locator website to retrieve data about the concentration of Level III
sex offenders by geographic area. Therefore, we agree with the Department that the district
court’s finding that “there is not a single [level-three] sex offender living in either zip code
55104 or 55106” is erroneous. The error, however, is harmless. Although the district court
relied, in part, on the availability of suitable residential rental housing in Ramsey County
to find that the Department violated Marlowe, the district court separately found that
“Ramsey County refused to supervise Ford at that time due to his lack of historical ties to
Ramsey County, and for no other reason .” Therefore, the district court’s conclusion is

11 This case is not the first time the Department has resisted the clear holding of
Marlowe. See, e.g., State ex rel. Sather v. Roy , No. A16-2064, 2017 WL 2920361, at *3
n.4 (Minn. App. July 10, 2017) (“The state contends that the rule from Marlowe is mere
dicta. This argument lacks merit.”).

24

supported by other accurate factual findings and the single erroneous finding is not
dispositive.
Ultimately, we uphold the relief ordered by the district court. To cure the
Department’s violation of Marlowe, the district court ordered the Department to “fully
comply” with Marlowe. If Ford proposes the Portland House in Hennepin County or a
residential placement in Ramsey County, the district court ordered the Department to treat
either county as Ford’s presumptive release jurisdiction. If either county declines to accept
supervision of Ford, the district court ordered the Department to “provide [Department]
supervision in that county, or modi fy Ford’s conditions of release. ”12 The scope of th e
district court’s order corresponds to the scope of the Department’s violation of Marlowe.
Accordingly, in our order filed on May 10, 2019, we reversed the court of appeals and
reinstated the district court’s order.

12 The Department argues that the district court “essentially ordered the [Department]
to approve whatever residence Ford proposes” and “[t]his lack of judicial deference
violates well-established separation of powers principles .” The Department’s argument
does not constitute a fair reading of the district court order, which requires only that the
Department follow Marlowe and its own policy. Although the Department cites State v.
Schwartz, 628 N.W.2d 134, 142 n.4 (Minn. 2001) (recognizing that “broad discretion
[should be] accorded [to] those making release decisions”), broad discretion is not
unbounded discretion. Why the Department would re sist abiding by its own policy is
unclear, and in any case, the Department must follow judicial precedent.
The Department also indicates that Policy 203.018 has been updated since the
evidentiary hearing in this case to better define an offender’s “historical ties” to a particular
location and address issues related to a county’s acceptance of a supervision request . But
the Department does not explain if, or how, the specific amendments are material to this
appeal.

25

CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals.
Reversed.