In the Matter of the Civil Commitment of: Michael Dale Benson.

This opinion will be unpublished and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
A19-0666

In the Matter of the Civil Commitment of:
Michael Dale Benson.

Filed October 21, 2019
Affirmed
Smith, Tracy M., Judge

Commitment Appeal Panel
File No. AP17-9137

Michael Dale Benson, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, R. J. Detrick, Assistant Attor ney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Chad Michael Larson, Douglas Cou nty Attorney, Alexandria, Minne sota (for respondent
Douglas County)

Considered and decided by Smith, Tracy M., Presiding Judge; Re yes, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
On appeal from the Commitment Ap p e a l P a n e l ’ s ( C A P ’ s ) d e n i a l , without an
evidentiary hearing, of appellant Michael Benson’s petition for a d i s c h a r g e f r o m h i s
commitment to the Minnesota Sex Offender Program (MSOP) as a ps ychopathic
personality, Benson argues that (a) he made a prima facie case that he does not have a
sexual disorder; (b) using his newly diagnosed mental illness as a basis for continuing his

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commitment violates res judicata; (c) the CAP failed to view th e record in the light most
favorable to appellant; and (d) h is continued commitment to MSO P deprives him of due
process of law. We affirm.
FACTS
In October 1989, Benson pleade d guilty to first-degree criminal sexual conduct and
was incarcerated. As part of a pr esentence investigation, Bens on acknowledged having
committed at least five sexual a ssaults besides the offense to which he pleaded guilty.
Benson also detailed an extensive sexual history. Later, Benso n denied committing any
sexual offenses and claimed a le ss extensive sexual history. I n 1993, Benson was
indeterminately committed to MSOP as what is now known as a sex ual psychopathic
personality (SPP).1 Benson appealed, and this court affirmed. In re Benson, No. C0-93-
1357, 1993 WL 459840 (Mi nn. App. Nov. 9, 1993). 2 Benson refused to participate in
treatment throughout his incarceration and commitment.
In January 2017, Benson petitioned the Special Review Board (S RB) for, among
other things, a full discharge from MSOP. As part of those pro ceedings, Dr. Jennifer
Tippett interviewed Benson and pr epared a Sexual Violence Risk Assessment (SVRA).
The SVRA states:

1 Benson was committed as what was then known as a “psychopathic personality.” The
“psychopathic personality” is the predecessor to the current “s exual psychopathic
personality.” See Call v. Gomez, 535 N.W.2d 312, 317 & n.2 (Minn. 1995) (addressing
evolution of the former “psychopathic personality” to “sexual psychopathic personality”).

2 Benson asks us to “vacate the Original Commitment Order and se nd it back to Douglas
County for a hearing.” This request is one that this court rehear the prior appeal. There is
no petition for rehearing in this court. Minn. R. Civ. App. P. 140.01.

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[T]hroughout the record, [Benson’s] self-report [of his sexual
history] has changed to the extent that he is not considered a
reliable historian. . . . Overall, the reader is cautioned giv en
[Benson’s] lack of credible reporting, and the lack of
corroborating evidence (i.e. specialized assessments, treatment
records, etc.) this report and the resulting opinion are based on
the limited information available to the undersigned.

The SVRA does not diagnose Benson with a sexual disorder but d oes diagnose him
with narcissistic personality disorder. The SVRA concludes:
To the ultimate question of whether [Benson] meets all criteria
needed for a [discharge], . . . there is much to suggest that h e
may meet criteria for a reduction in custody level. The
certainty of such a statement is hindered by a lack of objective
information concerning [Benson ’s] sexual risk. If [Benson]
did in fact commit a string of legally undetected stranger rapes
prior to his commitment at MSOP, this would ultimately alter
his treatment needs, dynamic risk level, and weigh heavily in
the opinion of this evaluator. In sum, absent any evidence or
objective measure of sexual arousal or transparency it is
exceedingly difficult to state whether [Benson] meets the
criteria for a reduction in custody level. Such an objective
measure, be it a polygraph, PPG, or other assessment would
provide more information regarding [Benson’s] overall risk
level. . . . At this time, [Benson] does not meet criteria for a
full discharge.

A majority of the SRB recommende d denying Benson’s petition. Benson sought
review by the Commitment Appeal Panel (CAP) and, in doing so, a lso challenged the
constitutionality of aspects of the MSOP system. At the first- phase hearing before the
CAP, Tippett and Benson testified. At the end of that hearing, the commissioner moved,
under Minn. R. Civ. P. 41.02(b), to dismiss Benson’s petition because he failed to present
a prima facie case for discharge. The CAP dismissed Benson’s petition for discharge and

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stated that it could not address his constitutional challenges to the MSOP system. Benson
appeals.
D E C I S I O N
I. The CAP did not err by dismiss ing the petition for discharge.
Whether to discharge a person committed to MSOP as an SPP or a s a sexually
dangerous person (SDP) is addressed by Minn. Stat. § 253D.31 (2 018). Construing a
predecessor to that statute containing similar language to the current statute, the supreme
court stated that a person can remain confined to MSOP “for onl y so long as he or she
continues both to need further i npatient treatment and supervision for his sexual disorder
and to pose a danger to the public.” Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995);
see In re Commitment of Fugelseth , 907 N.W.2d 248, 253 (Minn. App. 2018) (applying
Call in a case involving the current statute), review denied (Minn. Apr. 17, 2018).
When addressing whether to grant a discharge from MSOP, the CA P “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. Consideration of
a petition has two phases:
When appearing before [the CAP], the committed person bears
the burden of going forward w ith the evidence, which means
presenting a prima facie case with competent evidence to show
that the person is entitled to t he requested relief. We have
recently described that burden as a burden of production,
which requires the committed person to come forward with
sufficient, competent evidence that, if proven, would entitle the
petitioner to relief. The proceeding in which a committed
person produces evidence is commonly referred to as a first-

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phase hearing. If the committed person satisfies his burden of
production, then the party opp osing the petition bears the
burden of proof by clear and convincing evidence that the
discharge or provisional disch arge should be denied. The
proceeding in which the opposing party attempts to prove that
the discharge petition should be denied is commonly referred
to as a second-phase hearing.

Coker v. Jesson, 831 N.W.2d 483, 485-86 (Minn. 2013) (footnote, citations, and quotations
omitted); see Minn. Stat. § 253D.28, subd. 2(d) (2018) (addressing discharge).
After Benson’s first-phase heari ng, the commissioner moved, un der rule 41.02(b),
to dismiss Benson’s petition.
On a rule 41.02(b) motion to dismiss a discharge petition at the
close of a petitioner’s case-in-chief, the [CAP] may not weigh
the evidence or make credibility determinations regarding
discharge, and instead must view the evidence in a light most
favorable to the committed person. [Appellate courts]
therefore review the [CAP’s] dismissal of the petition for
discharge de novo.

Foster v. Jesson , 857 N.W.2d 545, 549 (Minn. App. 2014) (citation and quotation s
omitted). Also, this court has rejected the idea that, “by themselves, conclusory assertions
by a committed person are sufficien t to avoid dismissal of a pe tition for discharge from
MSOP.” In re Civil Commitment of Poole, 921 N.W.2d 62, 69 (Minn. App. 2018), review
denied (Minn. Jan. 15, 2019).
A. Prima facie case
Benson argues that he establishe d a prima facie case for discharge—in fact, that he
is entitled to release immediately—because the evidence at the first-phase hearing showed
that he does not have a sexual disorder.

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We reject Benson’s argument that the evidence establishes that he does not have a
sexual disorder. Benson’s argument assumes that, because Tippe tt did not diagnose him
with a sexual disorder, he does not have a sexual disorder. Wh en Tippett was asked
whether she ruled out diagnosin g Benson with a paraphilic disor der, she, consistent with
the SVRA, testified that “with the dearth of the evidence that I possessed, I could not rule
it in or out.” Thus, Benson’s argument misreads both the SVRA and Tippett’s testimony.
Tippett’s failure to diagnose Benson with a sexual disorder does not mean that Benson does
not have a sexual disorder; it simply reflects his refusal to participate in therapy.
In addition, Benson’s argument misapprehends the two-phase hearing process. The
question at a first-phase hearing is not whether confinement should continue but whether
the patient made a prima facie case for the relief sought by “c om[ing] forward with
sufficient, competent evidence that, if proven, would entitle the petitioner to relief.” Coker,
831 N.W.2d at 485-86 (quotation omitted); see Poole, 921 N.W.2d at 66 (quoting Coker,
831 N.W.2d 485-86). Thus, at a first-phase hearing, the MSOP p atient has the burden to
affirmatively produce competent evidence that could entitle the patient to the relief sought.
See Braylock v. Jesson , 819 N.W.2d 585, 589 (Minn. 2012) (stating that “presenting a
prima facie case” and going “forwa rd with the evidence” are bot h “synonymous with a
requirement that a party meet a b urden of production” (quotation marks omitted)). Here,
Benson’s “evidence” was the comb ination of Tippett not diagnosi ng him with a sexual
disorder with his otherwise unsupported assertion that he lacks a sexual disorder. But, as
explained above, Benson misreads both Tippett’s SVRA and her te stimony, and his
unsupported assertion runs afoul of Poole’s observation that, by themselves, conclusory

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assertions by a committed person are insufficient to avoid dism issal of a petition for
discharge from MSOP. 921 N.W.2d at 69.
Moreover, apart from Benson’s failure to introduce any affirma tive evidence
making a prima facie case for discharge, the evidence that was introduced at the first-phase
hearing indicates that Benson satisfies neither of the Call criteria for discharge. 535
N.W.2d at 319 (identifying the two criteria of no continued need for inpatient treatment for
sexual disorder and no danger to the public). As to the first Call criteria—whether Benson
needs inpatient treatment for a sexual disorder—the SVRA states:
[D]ue to a dearth of information surrounding his arousal
patterns, and past behaviors, it is unclear whether [Benson]
necessitates treatment for disordered arousal . . . . Until mo re
information is available, it is the undersigned’s opinion
[Benson] may benefit from treatment programming. At this
time, [Benson] does not meet this criteria.

As to the second Call criteria—whether Benson is a danger to the public—Tippett testified
that Benson continues to need tr eatment for his narcissistic pe rsonality disorder, that he
remains a danger to the public, a nd that Benson’s narcissistic personality disorder is
correlated with, but does not n ecessarily cause, sexual offendi ng. Explaining the
relationship between Benson’s personality disorder and sexual offending, Tippet said that
“a large part of [Benson’s] sexual offending had to do with his lack of ability to take into
account the safety or experience of others. Essentially he’s willing to hurt other people to
get what he wants.”
Benson asserts that his diagnosis of a narcissistic personality disorder is not
independently sufficient to suppor t his continued confinement a t MSOP. Benson admits

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that caselaw has treated an an tisocial personality disorder as a sexual disorder for
commitment purposes if that disorder required treatment to abat e its tendency to make an
MSOP patient sexually dangerous . This case is similar: Tippet t testified that Benson’s
narcissistic personality disorder forms a “large part” of the b asis for sexual offending,3 is
the reason Benson lacks the “ability to take into account the safety or experience of others,”
and makes Benson “willing to hurt other people to get what he wants.”
Benson also asserts that his n arcissistic personality disorder cannot be a basis for
continued treatment at MSOP because he has not committed a sexu al offense since his
commitment. But, as Tippett noted, Benson has been in a “contr olled,” or “very
controlled” or “very secure” environment at MSOP. Tippett also stated that “[g]iven that
we don’t have a clear understanding of how [Benson] would do in a l e s s s e c u r e
environment, vis-a-vis, he didn’ t do well in conventional treat ment and acted out, and I
can’t opine he would do well in open society with absolutely no security.”
In sum, Benson failed to establish a prima facie case for disc harge and the record
evidence from the first-phase hearing supports his continued confinement.
B. Res judicata
Benson asserts that Tippett’s current diagnosis of him as a na rcissistic personality
“violates” the doctrine of res judicata because he was not diag nosed with a narcissistic
personality disorder when he was first committed to MSOP. Res judicata and collateral
estoppel are not rigidly applied and can be qualified or rejected if their application would

3 If Benson’s narcissistic personality disorder is not a “large part” of the basis for his sexual
offending, that would suggest that Benson does, in fact, have a sexual disorder.

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contravene public policy. AFSCME Council 96 v. Arrowhead Reg’l Corr. Bd., 356 N.W.2d
295, 299 (Minn. 1984); see Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004)
(addressing res judicata); Falgren v. State Bd. of Teaching , 545 N.W.2d 901, 905 (Minn.
1996) (addressing collateral estoppel). Discharging an untreated sex offender who “lacks”
the “ability” to take into account the safety of others, and wh o is “willing to hurt other
people to get what he wants,” would contravene public policy. Thus, even if res judicata
is not limited to judicial rulings and does apply to diagnoses in commitment proceedings,
and even if Benson showed the existence of all the prerequisites for applying res judicata,
it would be inappropriate, as a matter of public policy, to apply the doctrine here.
C. Application of rule 41.02(b)
Benson argues that the CAP misapplied rule 41.02(b) by weighin g evidence and
assessing witness credibility. To support this assertion, Bens on quotes the portion of the
CAP’s order stating: “Overall, [Benson] presented his own uncorroborated testimony and
the testimony and assessment of [Tippett], who does not believe he meets the criteria for
discharge, . . . [Benson] has not met his burden of production. Therefore, the
Commissioner’s motion to dismiss the Petition must be granted.” But the CAP’s order,
citing Coker, recognized that the CAP “is not allowed to weigh the evidence o r m a k e
credibility determinations at this stage of the proceedings and is required to view the
evidence produced in a light most favorable to the committed person.” And Benson’s quote
of the CAP’s order uses an ellipses to omit the portion of the order stating:
Even when viewing the evidence in the light most favorable to
[Benson], the evidence does not support a determination that
[Benson] is capable of making an acceptable adjustment to

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open society, is no longer a risk to the public, or that he is no
longer in need of treatment or supervision.

Thus, not only did the CAP acknowledge that Coker requires it to view the evidence in the
light most favorable to Benson, it explicitly noted that it did exactly that. Accordingly, we
reject Benson’s argument that the CAP misapplied rule 41.02(b).
II. Benson’s constitutional arguments lack merit.
Benson asserts that he was denied assessments of his condition , was denied proper
placement within the MSOP system , and is subject to preventive detention. Therefore,
Benson concludes, his commitment denies him due process of law.
A. Assessments
Both the Eighth Circuit Court of Appeals and the Minnesota Sup reme Court have
rejected the assertion that the MSOP procedures are defective because they do not provide
periodic reviews. Karsjens v. Piper, 845 F.3d 394, 409-1 1 (8th Cir. 2017), cert. denied,
138 S. Ct. 106 (2017); Call, 535 N.W.2d at 318-19. Moreover, Tippett assessed Benson
for these proceedings, and the commissioner acknowledges both that an MSOP patient can
file a new petition for a reduction in custody six months after a prior petition is resolved
and that, when a petition reaches the CAP, an expert is appoint ed to assess the patient.
Therefore, we reject Benson’s argument on this point.
B. Placement
Benson asserts that he is constitutionally entitled to the lea st restrictive placement
within MSOP. In Karsjens, the federal district court ruled Minnesota’s Civil Commitment
and Treatment Act (MCTA) facially unconstitutional for a series of reasons. 845 F.3d at

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409. The Eighth Circuit Court of Appeals summarized one of those reasons by stating that
the MCTA “did not provide less re strictive alternatives although the state indicated such
would be available.” Id. After detailing the procedur es and evidentiary standards
applicable to a committed person’s petition for a reduction in custody or for a release from
confinement, the Eighth Circuit Court of Appeals reversed the f ederal district court,
reasoning:
We conclude that this extensive process and the protections to
persons committed under MCTA are rationally related to the
State’s legitimate interest of protecting its citizens from
sexually dangerous persons o r persons who have a sexual
psychopathic personality. Those protections allow committed
individuals to petition for a re duction in custody, including
release; therefore, the statute is facially constitutional.

Id. at 410. Thus, the Eighth Circuit has rejected the assertion of a constitutional right to a
least restrictive placement, and we see no reason to reach another result here.
By statute, a person found to be SDP or SPP “ shall” be committed “to a secure
treatment facility unless the person establishes by clear and convincing evidence that a less
restrictive treatment program is available, is willing to accep t the respondent under
commitment, and is consistent with the person’s treatment needs and the requirements of
public safety.” Minn. Stat. § 253D.07, subd. 3 (2018). Thus, even if Benson had clear and
convincing evidence that a less restrictive facility is available and is consistent with public
safety, he has no right to be pla ced at that less restrictive facility unless the facility is
“willing” to accept him. Benson presented no evidence to establish that fact.

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C. Preventive detention
Benson asserts that the alleged lack of assessments means that his continued
confinement to MSOP constitutes an impermissible preventive detention. In In re Blodgett,
a person who had refused a “litany” of treatment programs was committed as what is now
a n S P P a p p e a l e d h i s c o m m i t m e n t , a r g u i n g , a m o n g o t h e r t h i n g s , t ha t t h e c o m m i t m e n t
constituted a preventive detentio n. 510 N.W.2d 910, 912 (Minn. 1994). Rejecting that
argument, the supreme court noted both that one purpose of comm itment is treatment of
the committed person and that it was “somewhat incongruous that a sexual offender should
be able to prove he is untreatable by refusing treatment [and hence that he is subject to an
impermissible preventive-detention.]” Id. at 915-16; see Call, 535 N.W.2d at 318 (citing
this aspect of Blodgett). Here, because Benson refused treatment and is making a simi lar
argument, we reject Benson’s argument.
Affirmed.