In the Matter of the Risk Level Determination of D. R. C.

This opinion will be unpublished and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
A18-0396

In the Matter of the Risk Level Determination of D. R. C.

Filed October 8, 2018
Affirmed
Schellhas, Judge

Minnesota Department of Corrections
File No. OAH 19-1100-34939

D.R.C., Duluth, Minnesota (pro se relator)

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Corrections)

Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Stauber,
Judge.*
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
In this certiorari appeal, relator challenges the administrative law judge’s summary
disposition of his appeal of his risk-level-II assignment. We affirm.
FACTS
In 2006, relator D.R.C. w as convicted of first -degree criminal sexual conduct and
sentenced to 144 months in prison after he forced a 13 -year-old girl to perform fellatio on

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

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him. In May 2014, the Minnesota Department of Corrections (DOC) released D.R.C. to a
work-release halfway h ouse on intensive supervised release. One year later, the DOC
revoked D.R.C.’s release after finding that he had asked a 13-year-old girl, with whom he
spoke “routine[ly],” to lift up her shirt. The DOC returned D.R.C. to serve the remainder
of his sentence.
On December 14, 2017, D.R.C. appeared at his end -of-confinement review
committee (ECRC) hearing. The ECRC applied special concern #9 and assigned D.R.C. a
risk level II. D.R.C. sought administrative review of the ECRC’s risk -level assignment,
and the ECRC moved for summary disposition. An administrative-law judge (ALJ) granted
the motion, concluding that D.R.C. “failed to raise a genuine issue of material fact related
to the ECRC’s risk level assignment.”
This certiorari appeal follows.
D E C I S I O N
Minnesota Rule 1400.5500 (K) (2017) authorizes an ALJ to recommend summary
disposition “of the case or any part thereof where there is no genuine issue as to any
material fact.” “Summary disposition is the administrative equivalent of summary
judgment.” Pietsch v. Minn. Bd. of Chiropractic Exam’rs , 683 N.W.2d 303, 306 (Minn.
2004). On appeal, we review summary dispositions to determine whether any genuine issue
of material fact exists and whether the adjudicator applied the law correctly. In re
Assessment Is sued to Leisure Hills Health Care Ctr. , 518 N.W.2d 71, 75 (Minn. App.
1994), review denied (Minn. Sept. 16, 1994). In doing so, an appellate court views the

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evidence in the light most favorable to the party against whom the disposition was entered.
Tombers v. City of Brooklyn Center, 611 N.W.2d 24, 27 (Minn. App. 2000).
Minnesota Statutes section 244.052 (2016) governs the risk -level-assignment
process for a sex offender nearing the end of his confinement. The statute establishes a
five-person ECRC within the DOC to assess, on a case-by-case basis, the public risk posed
by predatory offenders who will soon be released from confinement. Minn. Stat. § 244.052,
subd. 3(a)–(b). The ECRC must assign one of three risk levels to an offender based on the
offender’s risk-assessment score. Id., subd. 3(e). “A risk-level-I designation indicates that
an offender has a low risk of reoffending, a risk -level-II designation indicates a moderate
risk of reoffending, and a risk -level-III designation indicates a high risk of r eoffending.”
In re Risk Level Determination of S.S. , 726 N.W.2d 121, 124 (Minn. App. 2007) , review
denied (Minn. Mar. 28, 2007).
D.R.C. argues that the ALJ erred by summarily disposing of his appeal of the risk -
level-II assignment because he was denied his “constitutional rights to be heard.” We
disagree. The United States and Minnesota Constitutions guarantee the right to due process.
U.S. Const. amend. XIV, § 1; Minn. Const. art. 1, § 7. Procedural due-process protections
restrain a government from actions that deprive a person of life, liberty, or property. Sawh
v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012). If governmental action does not
deprive an individual of a protected life, liberty, or property interest, then no process is
due. Id.
Here, D.R.C. fails to identify a protected life, liberty or property interest of which
the government deprived him. As a result, D. R.C. cannot establish that the government

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deprived him of due process. See Midway Ctr. Assocs. v. Midway Ctr., Inc. , 237 N.W.2d
76, 78 (Minn. 1975) (“It is well to bear in mind that on appeal error is never presumed. It
must be made to appear affirmatively b efore there can be reversal.” (quotation omitted)) .
And “[t]he function of an appellate court is that of review. It does not exist for the purpose
of demonstrating to the litigants through a detailed statement of the evidence that its
decision is right.” Engquist v. Wirtjes , 68 N.W.2d 412, 414 (Minn. 1955) . Moreover,
procedural due process requires notice and the opportunity to be heard. Sawh, 823 N.W.2d
at 635. The record reflects that the DOC provided D.R.C. with notice of the risk -level-
assessment hearing and provided him with the opportunity to be heard. D.R.C. therefore is
unable to establish that he was deprived of his right to due process.
D.R.C. also is unable to establish that the ALJ otherwise incorrectly applied the law,
or that an issue of material fact exists. And to the extent that D.R.C. challenges the DOC’s
revocation of his supervised release in 2015, that challenge was previously rejected by this
court. Accordingly, the ALJ properly granted summary disposition of the risk -level-II
assignment.
Affirmed.