In the Matter of the Civil Commitment of: Ronald Erwin Schmidt.

This opinion will be unpublished and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
A19-0761

In the Matter of the Civil Commitment of:
Ronald Erwin Schmidt.

Filed September 23, 2019
Affirmed
Cleary, Chief Judge

Commitment Appeal Panel
File No. AP18-9031

Keith Ellison, Attorney General, Anthony R. Noss, Assistant Att orney General, St. Paul,
Minnesota (for appellant Commissioner of Minnesota Department of Human Services)

Jennifer L. Thon, Steven D. Winkl er, Jones Law Office, Mankato, Minnesota (for
respondent Ronald Erwin Schmidt)

Considered and decided by Cleary, Chief Judge; Ross, Judge; an d Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Minnesota Commissioner of Human Services appeals a d ecision by the
Commitment Appeal Panel (CAP) to grant respondent Ronald Erwin Schmidt a provisional
discharge from his commitment to the Minnesota Sex Offender Pro gram (MSOP). The
commissioner argues that the CAP misread Schmidt’s proposed provisional-discharge plan
(PPDP), improperly altered that plan, and based its decision on an erroneous credibility

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determination. On this record, we reject the commissioner’s ar guments, and affirm the
CAP.
FACTS
Previously, this court affirmed the district court’s commitmen t of Schmidt to MSOP
as a sexually dangerous person. In re Civil Commitment of Schmidt, No. A10-1588, 2011
WL 781343 (Minn. App. Mar. 8, 2011), review denied (Minn. May 17, 2011). In June
2017, Schmidt petitioned the Spec ial Review Board (SRB) for, am ong other things, a
provisional discharge from his commitment. As part of that pro cess, Schmidt prepared a
PPDP, and MSOP assigned Dr. Carr to write a sexual violence risk assessment of Schmidt.
To prepare her assessment, Dr. Carr administered certain tests, including the Stable-2007
test.1 Dr. Carr’s assessment recommended against a provisional discharge. In March 2018,
the SRB recommended denying relief, and Schmidt sought review by the CAP.
The CAP appointed Dr. Gilbertson to make recommendations in th e case, and he
submitted a report stating Schmidt was a candidate for a provisional discharge. At the first-
phase hearing before the CAP, Dr. Gilbertson testified in favor of granting Schmidt’s
petition for provisional discharge. At the end of that first-phase hearing, the commissioner
moved to dismiss Schmidt’s petition, asserting that he did not make a prima facie case for
the relief sought. The CAP denied the part of the motion addre ssing a provisional
discharge.

1 The Stable-2007 test addresses the likelihood of future sexual offenses by the subject of
the test.

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Dr. Carr and Dr. Gilbertson then updated their respective repo rts, but neither
changed their position regarding whether Schmidt was a candidat e for a provisional
discharge. At the second-phase hearing before the CAP, Dr. Car r testified that Schmidt
was not a candidate for a provisional discharge. The MSOP Clin ical Courts Services
Director, who worked with Schmidt three to five years earlier, testified similarly.
Dr. Gilbertson disagreed, and testified that Schmidt could meet his treatment needs in an
outpatient program.
A significant difference between the views of Schmidt by Dr. C arr and
Dr. Gilbertson was that Dr. Carr put great weight on Schmidt’s “negative emotionality,”
and on what she saw as parallels b e t w e e n h i s c u r r e n t “ n e g a t i v e emotionality” and his
conduct at the time of the offenses prompting his commitment. Dr. Gilbertson admitted to
Schmidt’s “argumentativeness,” “testiness,” and “resentful[ness],” and that these matters
could be involved in his sexual offense cycle. Dr. Gilbertson stated, however, that he gave
these matters less weight than Dr. Carr, because, while Schmidt could “become
argumentative and have words with you and . . . be angry,” these incidents did not manifest
themselves in Schmidt’s therapy ratings, which showed “emotiona l dysregulation –
emotional regulation, Satisfactor y, Enhanced, Satisfactory, Enh anced. [Schmidt] [d]oes
not receive any ratings as Needs Improvement or still needs to be addressed.” As a result,
Dr. Gilbertson testified that “overall, [Schmidt is] doing well in the program, he’s meeting
the standards of the program.” Dr. Gilbertson also testified t hat Schmidt’s record shows
that while he may “immediately take offense at a recommendation or a comment that staff
will make . . . at a later point, he’ll come in to submission with it; he’ll give it a try.”

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In its resulting order, the CAP found Dr. Carr’s testimony not credible, mentioned
the aspects of Dr. Gilbertson’s testimony quoted above, found D r. Gilbertson’s testimony
credible, and granted Schmidt a provisional discharge. The commissioner appeals.
D E C I S I O N
I
When addressing whether to grant a provisional discharge, the C AP considers,
among other things, “whether the conditions of the [PPDP] will provide a reasonable
degree of protection to the public and will enable the committe d person to adjust
successfully to the community.” Minn. Stat. § 253D.30, subd. 1(b)(2) (2018). Schmidt’s
PPDP states that he “will reside at a residence which contains those conditions and
structure deemed necessary by the [CAP] after review by the [SRB].” Other provisions of
the PPDP have similar phrasing. Noting that, by statute, the C A P r e v i e w s t h e S R B ’ s
decisions, the commissioner asserts that Schmidt’s PPDP is defe ctive because it requires
the SRB to review the decisions of the CAP. See Minn. Stat. § 253D.28, subd. 1 (2018)
(allowing MSOP patients to ask th e CAP to review an SRB’s decis ion on a reduction in
custody).2
The relevant provisions of Schmidt’s PPDP could be read as the commissioner
suggests but, in context, they could also be read to say that t he CAP will address the
conditions of Schmidt’s residence but only “after review [of those matters] by the [SRB].”
Schmidt states that this was his intended meaning, and acknowledges that the CAP reviews

2 The parties agree that this question is properly before this court.

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decisions of the SRB. The parties agree on what the law requir es. In the proceedings
before the CAP, the commissioner argued that Schmidt’s PPDP was defective because a
different provision misstated the role of the MSOP director or the CAP. The CAP rejected
that argument, stating that the commissioner’s proposed reading of that provision was “not
how provisional discharge works. Although [Schmidt’s PPDP] cou ld have been more
artfully worded, it will be implemented in conjunction with MSO P policies . . . .” When
addressing this different, awkwardly phrased, PPDP provision, the CAP read that provision
to render its implementation consistent with the relevant autho rities. On this record, we
conclude that, by granting Schmid t’s petition for a provisional d i s c h a r g e d e s p i t e t h e
PPDP’s awkward language about the relationship between the SRB and the CAP, the CAP
once again interpreted that lan guage to result in implementatio n consistent with MSOP
policies. Thus, we conclude that relief on this point is unnecessary.
II
A CAP “may not grant a . . . provisional discharge on terms or conditions that were
not presented to the [SRB].” Minn. Stat. § 253D.28, subd. 3 (2 018). The commissioner
asserts that the CAP violated th is statute because its grant of the provisional discharge is
based on two changes it made to Schmidt’s PPDP.
A. Independent living
Schmidt’s PPDP proposes a range of possible supervision of his living arrangements
“from independent living through 24 hours per day supervision.” The C AP not e d t ha t
“[i]ndependent living is not an appropriate option,” and elimin ated that option from
Schmidt’s PPDP. The commissioner argues that, by doing so, the CAP was “considering

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conditions not submitted to the [SRB].” The CAP rejected the argument, stating that it was
“not considering a term or condition that was not presented to the [SRB]” but was
“eliminating the option of independent living at this time.”
On appeal, the commissioner asse rts that, “[w]hen the [CAP] el iminated the
independent living language from the plan it, in effect, revise d the [PPDP] by creating a
new term or condition that was not presented to the SRB,” and that doing so “goes beyond
the [CAP’s] statutory authority” under Minn. Stat. § 253D.28, subd. 3.3 This argument is
unpersuasive because it ignores th e distinction between elimina ting a provision that the
SRB considered and adding a pro vision that the SRB did not cons ider.4 Thus, we affirm
the CAP’s removal of the independent living provision from Schmidt’s PPDP, and we need
not address the commissioner’s argument that independent living is not appropriate for
Schmidt.
B. Policy 230-5600
The commissioner also argues that the CAP altered Schmidt’s PP DP by reading it
to “incorporat[e] by reference” MSOP Policy 230-5600, regarding supervision of
provisionally discharged MSOP patients by a “reintegration agen t.” The commissioner
further asserts that the CAP cannot base its grant of a provisional discharge on its amending

3 To support this argument, the commissioner cites an unpublishe d opinion of this court.
That opinion is factually distin guishable. Additionally, unpub lished opinions are not
precedential. Minn. Stat. § 480A.08, subd. 3 (2018).
4 We note that a CAP’s elimination of a provision considered by the SRB could have a
cascade effect on other PPDP provisions, possibly rendering a P PDP unworkable. The
commissioner, however, does not make that argument here.

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of Schmidt’s PPDP to include this policy because the policy was not a part of the PPDP
presented to the SRB.
Schmidt “signed [his PPDP] on September 26, 2017,” but the rel evant version of
MSOP Policy 230-5600 was “issued August 7, 2018, and [was] effe ctive September 4,
2018.” Thus, the relevant version of the policy did not exist when Schmidt signed his
PPDP, and was not effective until five months after the SRB’s A pril 2018 proceeding.
Schmidt could not have included it in the PPDP he submitted to the SRB, and we decline
to penalize him for failing to include a then-nonexistent policy in his PPDP. Also, Schmidt
candidly presented Policy 230-5600 to the CAP. How the commissioner is prejudiced by
the CAP’s statement that Schmidt ’s PPDP would be implemented in a manner consistent
with MSOP’s own policy is unclear. Absent prejudice, any error on this point does not
merit reversal. See In re Civil Commitment of Poole , 921 N.W.2d 62, 67 (Minn. App.
2018) (applying harmless error analysis to CAP’s decision to co nsider certain evidence),
review denied (Minn. Jan. 15, 2019).5
III
After an extensive review of the testimony and submissions of Dr. Carr, the CAP
“did not find [Dr. Carr’s] anal ysis of [Schmidt’s] current func tioning and risk credible.”
The CAP then thoroughly reviewed the testimony and submissions of Dr. Gilbertson. After

5 The commissioner’s reply brief asserts that the CAP erred when it made Policy 230-5600
a part of Schmidt’s PPDP because the policy can change without notice to the CAP,
meaning that the terms of Schmidt’s PPDP could change without notice to the CAP. The
commissioner raises this argument for the first time in the reply brief. Questions first raised
in a reply brief are not properly before this court. Szarzynski v. Szarzynski, 732 N.W.2d
285, 291 n.3 (Minn. App. 2007). Therefore, we do not address it.

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comparing the testimony and submissions of Dr. Carr and Dr. Gil bertson, the CAP found
“Dr. Gilbertson’s analysis and opinion very credible and [found] that [Schmidt] meets the
statutory criteria for provisional discharge. Dr. Gilbertson’s opinion was the more well-
reasoned and credible interpreta tion of the facts and [Schmidt’ s] current functioning and
risk.”
The commissioner argues that Schmidt’s provisional discharge m ust be reversed
because the CAP’s determination that Dr. Gilbertson’s analysis is credible is unsupported
by the record. Specifically, the commissioner notes that Dr. Carr and Dr. Gilbertson each
based their analysis, in part, on Schmidt’s results on the Stable-2007 test and that Dr. Carr
had “up-to-date training” on th at test while Dr. Gilbertson “‘w as not qualified on the
[Stable-]2007,’” and was “‘not certified to use that instrument .’” Consequently, the
commissioner argues, the CAP erred in ruling that Dr. Gilbertson’s testimony was credible.
Appellate courts “defer to a district court’s evaluation of ex pert testimony.” In re
Civil Commitment of Fugelseth , 907 N.W.2d 248, 256 (Minn. App. 2018) (quotation
omitted), review denied (Minn. Apr. 17, 2018); see In re Civil Commitment of Duvall, 916
N.W.2d 887, 894 (Minn. App. 2018) (applying Fugelseth on appeal from a CAP’s
decision), review denied (Sept. 18, 2018); see also In re Knops , 536 N.W.2d 616, 620
(Minn. 1995) (stating that “[w]here the findings of fact rest a lmost entirely on expert
testimony, the [district] court’s evaluation of credibility is of particular significance”).
When reviewing a CAP’s findings of fact, appellate courts “will not reweigh the evidence,
and it is immaterial that the record might also provide a reasonable basis for inferences and
findings to the contrary.” Duvall, 916 N.W.2d at 894 (quotation omitted).

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Here, at both the first- and second-phase hearings, Dr. Gilber tson testified to his
lack of expertise on the Stable-2007 test but noted that he was qualified on the 2002 version
of the test. When the CAP found Dr. Gilbertson credible, it wa s aware of his lack of
certification on the Stable-2007 test. Additionally, when aske d whether the Stable-2007
test would help analyze Schmidt’s emotionality, which Dr. Carr found to weigh against a
provisional discharge, Dr. Gilbertson stated: “No, I don’t thin k so . . . I don’t believe that
[Schmidt’s emotionality] alone can be utilized as a concern of the type that Dr. Carr was
giving it.” Thus, a critical distinction between the opinions of Dr. Carr and Dr. Gilbertson
goes to the weight given the result of the Stable-2007 test, ra ther than the use and scoring
of the test itself. Dr. Gilbertson admitted that there was no disagreement on the
administration and scoring of Schmidt’s Stable-2007 testing. Because Dr. Gilbertson does
not disagree with the scoring of Schmidt’s Stable-2007 tests, his lack of certification in the
scoring of that test has limited bearing on his analysis of Sch midt’s condition.
Accordingly, we reject the commissioner’s assertion that the CA P erred in ruling Dr.
Gilbertson to be credible.
Finally, we note that even if w e adopted the commissioner’s position and ruled that
Dr. Gilbertson was not credible, that fact would not address th e CAP’s separate finding
that it “did not find [Dr. Carr’s ] analysis of [Schmidt’s] curr ent functioning and risk
credible.”
Affirmed.