In the Matter of the Civil Commitment of: Jerry Gene Kerkhoff.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1191

In the Matter of the Civil Commitment of:
Jerry Gene Kerkhoff.

Filed January 14, 2019
Remanded
Ross, Judge

Judicial Appeal Panel
File No. AP17-9002
Douglas County File No. 21-P0-99-000371

Keith M. Ellison, Attorney General, Brandon Boese, Assistant Attorney General, St. Paul,
Minnesota (for appellant Commissioner of Human Services)

Chad M. Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent
Douglas County)

Jennifer L. Thon, Steven D. Winkler, Jones Law Office, Mankato, Minnesota (for
respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Smith, John,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
After the judicial appeal p anel granted Jerry Kerkhoff’s request for provisional
discharge from the Minnesota Sex Offender Program, the commissioner of human services
appealed, arguing that she had met her burden of offering clear and convincing opposing
evidence. Because the panel rendered insufficient factual findings, we cannot effectively
review de novo the panel’s application of the statutory criteria to the facts. We remand for
additional findings.
FACTS
Forty-five year old Jerry Kerkhoff has been indeterminately committed to the
Minnesota Sex Offender Program as a sexually dangerous person since 1999 after he
committed more than 1,000 sexual offenses against at least 41 children ages 3 months to
15 years, with conduct ranging “from peeping and fondling, to digital, vaginal, oral, and
anal intercourse.” The state moved Kerkhoff to community preparation services in 2015,
where he is currently in stage two. Kerkhoff petitioned the special review board in March
2016, seeking a provisional or full discharge from civil commitment. The board
recommended denial. Kerkhoff petitioned a judicial appeal panel for rehearing and
reconsideration. The commissioner moved to dismiss Kerkhoff’s petition. The panel
granted the motion with respect to full discharge but denied it with respect to provisional
discharge.
The participating experts opining about the petition (court-appointed examiner
Dr. Adam Gierok; forensic evaluator Dr. Mallory Obermire; and program clinical director,
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Christopher Schiffer) were unanimous in concluding that Kerkhoff needed continued
treatment in community preparation services at St. Peter. The panel nevertheless granted
Kerkhoff’s request for a provisional discharge, declaring that “he no longer needs
residential sex offender treatment and supervision in his current setting.”
The commissioner appeals.
D E C I S I O N
The commissioner offers three arguments. She argues that the panel made
insufficiently particular incorrect factual findings, that the panel erred by finding that the
commissioner had not met her burden of providing clear and convincing evidence opposing
Kerkhoff’s petition, and that the panel lacked the authority to order the program’s executive
director to identify a residential treatment facility to place Kerkhoff. We cannot assess the
arguments because the panel’s factual findings lack the clarity necessary for our de novo
application of the law to the facts.
The imprecise nature of the factual findings leaves us unable to assess the
commissioner’s primary argument that Kerkhoff cannot be prov isionally discharged
because the provisional-discharge plan fails to protect the public from harm. A person
committed as a sexually dangerous person “shall not be provisionally discharged unless
the committed person is capable of making an acceptable adjustment to open society .”
Minn. Stat. § 253D.30, subd. 1(a) (2018). Once the person seeking provisional discharge
satisfies his initial burden of production showing that he is entitled to provisional discharge,
“the party opposing . . . provisional discharge bears the burden of proof by clear and
convincing evidence that the . . . provisional discharge should be denied.” Minn.
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Stat. § 253D.28, subd. 2(d) (2018). We review for clear error 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 Civil Commitment of Kropp, 895 N.W.2d 647, 650
(Minn. App. 2017), rehearing denied (Minn. June 20, 2017). The panel must consider two
factors when evaluating a petition for provisional discharge:
(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 conditi ons of the provisional discharge
plan will provide a reasonable degree of protection to the
public and will enable the committed person to adjust
successfully to the community.

Minn. Stat. § 253D.30, subd. 1(b) (2018). We do not reweigh evidence on appeal, and we
will affirm even if the record provides a reasonable basis for a different conclusion. Kropp,
895 N.W.2d at 650. But we review the application of statutory criteria to the facts de novo.
In re Civil Commitment of Duvall, 916 N.W.2d 887, 893 (Minn. App. 2018), review denied
(Minn. Sept. 18, 2018). Our de novo review requires us to know how the panel resolved
disputed evidence.
Unless the panel rejected the unanimous opinion of the experts, the commissioner
met her burden of producing clear and convincing evidence opposing Kerkhoff’s petition.
Clear and convincing evidence exists when it is highly probable that the facts asserted are
true. Kropp, 895 N.W.2d at 654. All the experts testified that Kerkhoff needs continued
treatment and that a provisional discharge is premature. Even the two experts who
conceded that some living arrangements might alleviate safety concerns held to their
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opinion that Kerkhoff is not ready for provisional discharge. Because all the experts
opposed the requested discharge, the commissioner seems to have met her evidentiary
burden. The only contrary possibility is that the panel rejected the opinion for some reason.
But the panel did not say that it was rejecting the experts’ unanimous opinion or, if
it was, on what evidentiary or reasoned basis it was doing so. We must examine “the record
to determine whether the evidence as a whole sustains the panel’s findings.” Kropp, 895
N.W.2d at 650. While the panel gave an extensive recounting of the evidence presented to
the panel , it did not offer its assessment of the evidence. Merely identifying evidence
cannot substitute for clearly finding facts. In re Civil Commitment of Spicer, 853 N.W.2d
803, 810 (Minn. App. 2014). “[I]t is insufficient for a district court to ‘merely recite[] or
summarize[] excerpted portions of testimony of [the] witnesses without commenting
independently either upon their opinions or the foundation for their opinions or the relative
credibility of the various witnesses.’” Id. (quoting In re Welfare of M.M., 452 N.W.2d 236,
239 (Minn. 1990)). Here the panel recited the evidence but failed to say whether it was
credible or why, if it was credible, the panel’s decision contradicts it. We are not suggesting
that extensive evaluation of every witness’s credibility is necessary for our review, but the
panel’s silence on the evidence prevents us from reviewing its findings for clear error and
from applying the law to the findings that are supported by evidence.
We offer no opinion on the issues raised by the commissioner in light of our need
for a clear statement of facts. We remand for the panel to make findings that explain the
rationale of its decision.
Remanded.