1
STATE OF MINNESOTA

IN SUPREME COURT

A19-0829

Court of Appeals Chutich, J.
Concurring in part, dissenting in part,
Gildea, C.J., McKeig, J.
Max Carl Werlich,

Appellant,

vs. Filed: April 21, 2021
Office of Appellate Courts
Paul Schnell, et al.,

Respondents.

______________________________

Thomas Schultz, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C.;
and

Bradford Colbert, Legal Assi stance to Minnesota Prisoners, Saint Paul, Minnesota, for
appellant.

Keith Ellison, Attorney General, Matthew Frank, Assistant A ttorney General, Saint Paul,
Minnesota, for respondents.

William Ward, Minnesota State Public Defe nder, Cathryn Middlebrook, Chief Appellate
Public Defender, Saint Paul, Minnesota; and

Daniel J. Koewler, Ramsay Law Firm, P.L.L. C., Roseville, Minnesota, for amici curiae
Minnesota Board of Public Defense and Minnesota Associ ation of Criminal Defense
Lawyers.

Joshua Esmay, The Legal Rights Center, Mi nneapolis, Minnesota, for amicus curiae The
Legal Rights Center.
________________________

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S Y L L A B U S
1. Boutin v. LaFleur , 591 N.W.2d 711 (Minn. 1999), does not foreclose
constitutional challenges to th e consequences resu lting from registration as a predatory
offender when the Legislatur e has expanded the requirements and consequences of that
registration beyond those considered in that decision.
2. The district court did not err in dism issing claims that are moot, not ripe, or
otherwise not justiciable.
3. The complaint stated a claim upon whic h relief can be granted, specifically
a claim that requiring registration as a predatory offender imposes collateral consequences
that burden appellant’s fundamental right to parent and, therefore, violated due process.
4. The district court did not err in di smissing a procedural due process claim
based on exclusion of regist ered predatory offenders from eligibility for the Challenge
Incarceration Program, under Minnesota Statut es section 244.17, subdivision 3(a)(4)
(2020), because appellant does not have a statutory liberty interest in conditional release.
5. The Minnesota Predatory Offender Registration Law, Minnesota Statutes
section 243.166 (2020), does no t unconstitutionally restrict th e discretion of prosecutors
under the separation of powers doctrine.
Affirmed in part, reversed in part, and remanded.

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O P I N I O N
CHUTICH, Justice.
This case concerns as-applied constitu tional challenges to the collateral
consequences resulting from registration as a predatory offend er, which the district court
dismissed under Rule 12.02 of the Minnesot a Rules of Civil Procedure. The statute
provides that a person must register as a predatory offender if the person is convicted of an
enumerated offense or charged with an enum erated offense and convicted of any other
offense that arises out of the same set of circumstances as the charged offense. Minn. Stat.
§ 243.166, subd. 1b (2020). Appellant Max Carl Werlich was initially charged with
kidnapping, an enumerated offense, and two other offenses. Under a plea agreement, the
State dismissed the initial co mplaint and filed a new complaint charging Werlich with
crimes other than kidnapping.
After Werlich pleaded guilty and began serving his sentence, the Commissioner of
Corrections denied his application for th e Challenge Incarceration Program because
persons required to register as predatory o ffenders are not eligible for that program. See
Minn. Stat. § 244.17, subd. 3(a) (4) (2020). Specifically, th e Commissioner asserted that
Werlich’s convictions for crimes other than kidnapping arose out of the same set of
circumstances as the initial, but dismissed, charge of kidnapping. Given those shared
circumstances, the previous charge of kidn apping required Werlich to register as a
predatory offender under section 243.166, whic h made him ineligible for the Program.
Werlich then sued the Commissioner for injunctive and declaratory relief, alleging that the
predatory offender registration statute and its many collateral consequences deny him due

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process as applied to his charged, but not co nvicted, enumerated offense of kidnapping.
The district court granted the Commissioner’s motion to dismiss, and the court of appeals
affirmed. We granted Wer lich’s petition for review conc erning the dismissal of his
constitutional claims.
We conclude that several of Werlich’s clai ms are not justiciable, but at least some
of the facts alleged in the complaint state a claim upon which relief can be granted.
Accordingly, we affirm in part and reverse in part the decision of the court of appeals and
remand to the district court for further proceedings consistent with this opinion.
FACTS
Because the district court dismissed Wer lich’s complaint under Rule 12.02 of the
Minnesota Rules of Civil Procedure, we accept as true the following facts that he alleged
in his complaint. See Walsh v. U.S. Bank, N.A. , 851 N.W.2d 598, 606 (Minn. 2014).
Werlich’s complaint states that he was at a friend’s house when two persons dropped by to
sell cannabis. He thought that the two owed him money, he dema nded repayment, and a
dispute ensued. The two person s told police that they and We rlich went to a gas station
where Werlich instructed one of them to withdraw cash from an ATM. Werlich then left
with $40 and two cell phones.
Based upon these allegations, the Stat e charged Werlich with one count of
kidnapping, two counts of aggravated robbery, and one count of unlawful possession of a
firearm. The State and Werlich then negotiated a plea deal that all sides agree was intended
to allow him to participate in the Challenge Incarceration Program. The Program is a boot
camp-style work program desi gned to rehabilitate young and able-bodied offenders,

5
making them eligible for conditional releas e after six months. As part of the plea
agreement, the State dismissed the first co mplaint and filed a new complaint under a
different docket number, this time without the kidnapping charge.1 Werlich pleaded guilty
to the new charges, and the district court sentenced him to 71 months in prison.
After Werlich pleaded guilty and started serving his sentence, the Commissioner of
Corrections found Werlich to be ineligible for the Program because he is required to
register as a predatory offender. See Minn. Stat. § 244.17, subd. 3(a)(4) (excluding from
eligibility “offenders who are committed to the commissioner’s custody for an offense that
requires registration under se ction 243.166”). A person co nvicted of an enumerated
offense2 or charged with an enumerated offense and convicted of another offense “arising
out of the same set of circumstances” as the charged enumerated offense must register as a
predatory offender. Minn. Stat. § 243.166, subd. 1b. According to the Commissioner,
Werlich is required to register as a predatory offender because he was initially charged with
an enumerated offense—kidnapping—that arose out of the same set of circumstances as
the offenses on which he was convicted.

1 The new complaint charged Werlich w ith two counts of fifth-degree drug
possession, two counts of threats of violence, two counts of theft, and one count of unlawful
possession of a firearm.

2 Enumerated offenses include murder, ki dnapping, criminal sexual conduct, indecent
exposure, false imprisonment, and possession of child pornography, among others. Minn.
Stat. § 243.166, subd. 1b(a) (2020).

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Had Werlich been eligible for and accepted into the Program, he could have been
released after six months. See Minn. Stat. § 244.172, subds. 1–2 (2020). Instead, Werlich
was required to serve his sentence in prison.
Werlich then sued the Commissioner and the Superintendent of the Minnesota
Bureau of Criminal Apprehension. Werlich challenged the Commissioner’s determination
that he is required to register as a predatory offender, his ineligibility for the Program, his
transfer to prison, and the imposition of a re striction limiting him to “no-contact” visits
with his infant son.
In his complaint, Werlich asserted th ree claims alleging four constitutional
violations. First, Werlich alleged that the Commissioner’s reliance on unproven allegations
to classify him as a predatory offender violates his substantive due process rights under the
United States and Minnesota Constitutions; na mely, that the registration requirement
infringes on his fundamental rights to an earlier release date, his right to parent his child,
his presumption of innocence , and his right to be free from unreasonable searches and
seizures. Second, Werlich alleged that pr edatory offender regist ration violates his
procedural due process rights because the State used unproven allegations as the basis for
punishment without affording him sufficient proc edure. Third, he alleged that predatory
offender registration violates his right to a ju ry trial and to confront witnesses under the
Sixth Amendment of the Unite d States Constitution and Ar ticle I, Section 6 of the
Minnesota Constitution because the State used unproven allegations as the basis for
punishment. Fourth, Werlich alleged that pr edatory offender registration violates the
separation of powers under Article III of the Minnesota Constituti on because the statute

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imposing that requirement infringes on the pr osecutor’s discretion not to pursue the
original kidnapping charge. He sought inj unctive relief under 42 U.S.C. § 1983 and a
declaration that he is eligible for the Program, or alternatively, if he is ineligible under the
relevant statutes and program rules, that his ineligibility violates his constitutional rights.3
The Commissioner moved to dismiss under Rule 12.02(a) and (e) of the Minnesota
Rules of Civil Procedure. The district court granted in part the motion to dismiss, finding
based on Boutin v. LaFleur , 591 N.W.2d 711 (Minn. 19 99)—and court of appeals’
decisions relying on it— that most of the facts alleged in the complaint failed to state claims
upon which relief could be granted. The dist rict court did find, however, that Werlich’s
claim concerning the no-contact visitation restriction with his child survived Rule 12.02(e).
The parties then stipulated to dismissal of the no-contact visitation restriction, and the
district court directed entry of a final judgment.
The court of appeals affirmed the district court’s dismissal of Werlich’s complaint.
Werlich v. Schnell , No. A19-0829, 2020 WL 773493 (Minn. App. Feb. 18, 2020). The
court held that the plain language of the statute establishing the Program’s eligibility
exclusions applied to Werlich. Id. at *4–5. Regarding Werlich’s constitutional claims, the

3 In his reply brief, Werlich offered a po ssible remedy should he prevail. Werlich
suggests that we could limit the definition of a predatory offender to only those convicted
of an enumerated offense. Alternatively, he proposes that we hold each specific challenged
statutory consequence to be unconstitutional as applied to a person charged with, but not
convicted of, an enumerated offense.

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court of appeals agreed with the district court that Boutin controlled.4 Id. at *6, *11. The
court also held that Werlich’s remaining clai ms were not ripe, in part because of his
incarceration. Id. at *7. Finally, the court concluded that the predatory offender
registration statute does not violate the separation of powers doctrine. Id. at *10.
Werlich filed a petition for review. We granted review on the issue of whether the
court of appeals erred when it affirmed the dismissal of his constitutional claims.
ANALYSIS
On appeal, Werlich challenges the dismissal of his claims, asserting that the
collateral consequences of the predatory of fender registration statute violate his due
process rights and the separation of powers doc trine. His underlying claims were limited
to the consequences of designating him as subject to registration, as applied to his charged,
but dismissed, enumerated offense of ki dnapping. The Commissioner of Corrections
contends that Werlich’s claims are not ripe. But even if we address the substance of his
claims, the Commissioner asserts that Boutin v. LaFleur precludes them. Because the
parties dispute whether our decision in Boutin controls the outcome here, we address that
issue first.

4 The court of appeals recognized that the current registration statute has changed
since Boutin was decided and that the statute “re quires many more convi cted persons to
register than were required to register when Boutin was decided.” Werlich, 2020 WL
773493, at *11. It noted, however, that “[t]he larger, policy-based questions . . . are more
properly for resolution by the legislative branch or by the Minnesota Supreme Court
modifying its precedent.” Id.

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I.
In Boutin, we upheld the constitutionality of the predatory offender registration
statute. 591 N.W.2d at 716–19. The Commissioner contends that if we reverse the court
of appeals in this case, we must necessarily overrule Boutin. Werlich counters that Boutin
does not preclude the relief requested in his complaint because after we decided Boutin,
the Legislature enacted many additional requirements for and consequences of registration.
Werlich is correct. In Boutin, we specifically looked at the impacts of registration
as a predatory offender that existed at that time . Notably, registration then consisted of
only three requirements:
First, the offender must submit a signed registration form which
contains “information required by the bureau of criminal apprehension,”
along with “a fingerprint card, and photograph of the person taken at the time
of the person’s release from incarceration or, if the person was not
incarcerated, at the time the person initially registered under this section.”
Minn. Stat. § 243.166, subd. 4(a) (1998). Second, the offender must sign and
return an annual addr ess verification form. See Minn. Stat. § 243.166,
subd. 4(c)(1) (1998). Finally, the o ffender must notify law enforcement
officials in writing at least five days prior to any change in address. See
Minn. Stat. § 243.166, subd. 3(b) (1998).

Boutin, 591 N.W.2d at 715 (footnote omitted). See id. at 717 (explaining that “the primary
purpose” of section 243.166 at the time was “to cr eate an offender registry to assist . . .
with investigations”).
We then analyzed whether the registration statute violated the fundamental right to
the presumption of innocence by requiring registration for an enumerated, charged offense
even if the person is not convicted of that offense. See id. at 716–17. We acknowledged,
however, that the presumption of innocence “ only applies to statutes which are punitive,

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or criminal, in nature.” Id. at 717. To determine if the registration statute was punitive,
we reviewed the Mendoza-Martinez factors. Id. (citing Kennedy v. Mendoza-Martinez ,
372 U.S. 144, 168–69 (1963)). After examinin g these factors, we concluded that the
statutory registration requirement was not p unitive and therefore di d not implicate the
fundamental right to the presumption of innocence under substantive due process. Id. We
then held that the registration requirement, while imposing stigma, did not result in a “loss
of a recognizable interest” that could give ri se to a liberty interest under procedural due
process. Id. at 718–19 (applying th e “stigma-plus” test of Paul v. Davis , 424 U.S. 693
(1976), and noting that the requirement to update address information imposed a “minimal
burden”).
In each part of the Boutin analysis, we specifically looked at the statutory
registration requirements that existed then, which only consisted of “updat[ing] address
information.” Id. at 718. Since Boutin, the Legislature has repeatedly amended
section 243.166 and other statutes, expandi ng the registration requirements and imposing
additional consequences of registration. Compare Minn. Stat. § 243.166, subd. 4 (1998)
(imposing address, photo, and fingerprint requirements for registration), with Minn. Stat.
§ 243.166, subds. 4–4a (2020) (expanded registration requirements). Some of the
additional consequences of registration are more substan tial than the reputational stigma
that Boutin discussed.5 Id. at 717.

5 Registered predatory offenders are, fo r example, ineligible to serve on school
boards, Minn. Stat. § 609B.123 (2020), cannot carry a firearm (even with a permit), Minn.
Stat. § 624.714, subd. 24 (2020), and are ineligible to hold a teacher’s license, Minn. Stat.
§ 122A.20, subd. 1(b) (2020).

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Accordingly, because the Legislature has provided for registration requirements and
statutory consequences markedly different than those in Boutin, we are not necessarily
bound by Boutin to reach the same conclusion here as we did in that case. We use the same
analysis, however, as we did in Boutin. That is, we consider whether the consequences of
registration are punitive or result in a “loss of a recognizable interest,” id. at 718, that could
give rise to a liberty interest under due process. See Gunderson v. Hvass , 339 F.3d 639,
643–45 (8th Cir. 2003) (applying the analytical framework of Boutin to conclude that
providing information concerning residence, employment, and vehicle ownership does not
unconstitutionally burden the liberty interests of a person required to register as a predatory
offender).
II.
We review de novo a motion to dism iss for failure to state a claim. Walsh,
851 N.W.2d at 606. We must “accept the facts alleged in the complaint as true and construe
all reasonable inferences in favor of the nonmoving party.” Id. “A claim is sufficient
against a motion to dismiss for failure to state a claim if it is possible on any evidence
which might be produced, consistent with the pleader’s theory, to grant the relief
demanded.” Id. at 603. And “[w]hen the complaint a lleges constitutional errors, a Rule
12.02 motion should be even more sparingly granted to ensure that our courts remain open
to protect our citizens against possible government overreach.” Elzie v. Comm’r of Pub.
Safety, 298 N.W.2d 29, 32 (Minn. 1980).
We also review de novo the constitutionality of a statute. In re Welfare of B.A.H.,
845 N.W.2d 158, 162 (Minn. 2014). Similarl y, we review questions of justiciability,

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including ripeness, de novo. See Cruz-Guzman v. State , 916 N.W.2d 1, 7 (Minn. 2018).
Ripeness determines when a claim may be brought. McCaughtry v. City of Red Wing ,
808 N.W.2d 331, 338 (Minn. 2011). “[A] litigant who questions the constitutionality of a
statutory provision, must . . . show that the st atute is, or is about to be, applied to his
disadvantage.” Lee v. Delmont, 36 N.W.2d 530, 537 (Minn. 1949). Issues that are “purely
hypothetical” are not justiciable. Id.
Applying these principles here, we firs t consider whether Werlich’s due process
challenges to the collateral consequences of predatory offender registration are justiciable.
Specifically, Werlich alleges that these consequences unconstitutionally burden several of
his fundamental rights: (1) his right to free speech, (2) his freedom from unreasonable
searches and seizures, (3) his freedom to travel between states, (4) his right to parent his
child, (5) his presumption of innocence and Sixth Amendment ri ghts, and (6) his right to
early release under the Challenge Incarceration Program.
We agree with the Commissioner that some of Werlich’s claims are not justiciable.
First, Werlich does not have standing to assert claims that predatory offender registration
restricts his access to social media in violation of his fundamental right to free speech and
subjects him to unreasonable searches and seizures in violation of the Fourth Amendment
to the United States Constitution. These rest rictions apply only to a Level 3 predatory
offender, Minn. Stat. § 244.05, subd. 6(a), (c ) (2020), and the Department of Corrections
has now classified Werlich as a Level 1 predatory offender. Accordingly, Werlich’s claims
under the First and Fourth Amen dments are not justiciable. See Seiz v. Citizens Pure Ice

13
Co., 290 N.W. 802, 804 (Minn. 1940) (stating th at to be justiciable, a controversy must
“involve[] definite and concrete assertions of right”).
Second, we conclude that Werlich’s clai m that predatory offender registration
violates his fundamental right to interstate trav el is not justiciable. Werlich asserts that
various laws of Wisconsin, Iowa, Michigan , and California impos e restrictions and
penalties on him because of his status as a predatory offender here in Minnesota, thus
significantly restricting his freedom of travel . He has not alleged, however, that any
provision of Minnesota’s registration statute pl aces any restrictions on his travel. As we
noted in Boutin, the predatory offender registration statute “does not restrict [an offender’s]
ability to change residences at will or even to move out of state.” Boutin, 591 N.W.2d at
717. If the laws of another state restrain hi s freedom to travel, he ultimately must bring
any challenge to those laws in the courts of those states. His argument concerning the
alleged restriction on his right to travel asserted here is without merit.
We next consider whether Werlich’s clai ms concerning his fundamental right to
parent his child are ripe. He specifically alleges that predatory offender registration “limits
[his] ability to raise [his child],” restricts his ability “to live with [his child],” and infringes
on his right “to custody of his child.” We acce pt the fact that Werlic h is a father to the
child as true because he asserted as much in his complaint. See Abel v. Abbott Nw. Hosp.,
947 N.W.2d 58, 68 (Minn. 2020). And on a Ru le 12.02 motion to dismiss, we draw all

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reasonable inferences in favor of Werlich. See id. Thus, we may reasonably infer that
Werlich will at least live with his child upon his release from prison.6
Werlich alleges that three specific colla teral consequences of predatory offender
registration restrict his ability to parent his child. First, Werlich claims that merely living
in the same home with his child is “threatened sexual abuse” that requires investigation.
Minn. Stat. § 626.556, subds. 1(b)(3), 2(n) (2018).7 Second, Werlich claims that the county
attorney must file a petition to terminate his parental rights due to his predatory offender
registration. Minn. Stat. § 260C.503, subd. 2( a)(6) (2020). Third, Werlich claims that a
court need not make “reasonable efforts” to reunite him with his child due to his predatory
offender status. Minn. Stat. § 260.012(a)(6) (2020).
The Commissioner responds that Werlich’ s claims are not ripe because he is
incarcerated and the statutes do not prevent hi m from living with his child or acting as a
parent. The Commissioner also asserts that if a petition to terminate parental rights is filed,

6 We take judicial notice of Werlich’s current status, based on the Department of
Corrections’ records, which show that he was placed on supervised release on
December 21, 2020. To the ex tent that Werlich alleges that the consequences of
registration continue to unconstitutionally burden his right to parent his child, his release
has not affected the justiciability of those claims. In additi on, his claim premised on his
ineligibility for the Challenge Incarceration Program is functionally justiciable because that
claim presents an issue of statutory interpre tation that has been adequately briefed and
argued by the parties. See In re Schmalz, 945 N.W.2d 46, 49 n.3 (Minn. 2020). Further,
the issue is one of public importance and statewide significance, see id., because it concerns
the eligibility of numerous Minnesota inmates for the program.

7 In 2020, the Legislature recodified sec tion 626.556, subdivisions 1(b)(3) and 2(n),
in sections 260E.01(b)(3) and 260E.03, subdivision 20, respectively. For ease of reference
given the briefing and prior history of this case, we will continue to refer to the 2018 statute,
which is substantively identical to the 2020 recodifications.

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Werlich would still be afforded the full pr ocedural protections provided in those
proceedings.
Given his release date and his express intent to live with his child after release, we
conclude that Werlich’s claims are ripe on at least one ground. We first note that a statute
need not completely prohibit a parent from seei ng or living with their child to impact the
fundamental right to parent that child. See SooHoo v. Johnson , 731 N.W.2d 815, 820
(Minn. 2007) (“A parent’s right to make de cisions concerning the care, custody, and
control of his or her children is a protected fundamental right.”). Werlich is correct that as
a registered predatory offende r, simply living with his child is “threatened sexual abuse”
under the statute, which requires investigation. Minn. Stat. § 626.556, subds. 1(b)(1), (3),
2(n). We conclude that he has a justiciable claim concerning his right to parent his child.
The dissent would hold otherwise for two reasons: (1) that Werlich did not properly
allege a right to parent claim in his complaint; and (2) that Werlich has no standing to assert
a right to parent claim because he admittedly has no custodial rights to his child at present.
On the first point, his request for relief expres sly asks the court to “permanently enjoin[]
Defendants from enforcing the above-described unconstitutional policies and practices.”
And under Count I in his complaint, Werlic h specifically alleges a violation of his
substantive due process rights, citing paragraph 80 of his co mplaint in which he alleges
that his status as a registered predatory offender violates “a parent’s right to raise his child.”
Indeed, Werlich alleged a violation of his right to parent no fewer than a dozen times
in his complaint. See Compl. ¶¶ 5–6, 8, 11, 56, 80, 90–91, 106, 124–25, 128
(“[Registration] interferes with Plaintiff’s ability to raise a nd live with his young son.”

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“[Registration] violates Plaintiff’s substantiv e due process rights . . . [including] to raise
his child.” “[Registration] limits Plaintiff’s ability to parent his child.”). And in all three
Counts, the complaint inco rporates by reference all preceding allegations. Id. at ¶¶ 126,
132, 141. Under our liberal pleading standards, Werlich adequately stated a claim that his
status as a registered predatory offender violates his right to parent under substantive due
process. See Home Ins. Co. v. Nat’l Union Fire Ins. of Pittsburgh, 658 N.W.2d 522, 535
(Minn. 2003) (“[C]ourts are to construe pleadings liberally.”).
The dissent, citing our decision in Heidbreder v. Carton , also concludes that
Werlich has no standing to assert a right to parent claim. 645 N.W.2d 355, 372–73 (Minn.
2002) (rejecting a right to parent claim where the putative fath er did not have a
“ ‘significant custodial, personal or financial relationship’ ” with his child (quoting Lehr v.
Robertson, 463 U.S. 248, 262 (1983))). We disagree. Unlike the plaintiff in Heidbreder,
where there was “no evidence in the record” that the put ative father had a personal
relationship with his child, id. at 372, Werlich here alleges multiple facts that show that he
did. Specifically, Werlich alleged in his complaint that he “witnessed the birth of his son”
and had “spent that past m onth [before his sentencing he aring] with his baby boy
establishing a good connection with him, and his primary objective in life is to . . . get back
home so he can be a father and be a husband and move forward with a whole new chapter
in his life.” Compl. ¶ 34. Werlich has therefore alleged that he has “a full commitment to
the responsibilities of parenthood by com[ing] forw ard to participate in the rearing of his
child” so that “his interest in personal contact with his child acquires substantial protection

17
under the due process clause.” Lehr, 463 U.S. at 261 (citation omitted) (internal quotation
marks omitted).
Although we conclude that Werlich has sufficiently stated a claim that the
consequences of registration, as imposed by section 626.556, violate his right to parent, he
misreads the two remaining statutes. While the county attorney is obligated to file a
petition to terminate parental righ ts, she only need do so if th e child is in the care of a
noncustodial parent. See Minn. Stat. § 260C.503, subd. 1( a) (2020). Werlich alleged in
his complaint that his child is currently living with the child’s mother, who by law is the
sole custodial parent until separate proceedings occur. See Minn. Stat. § 257.541, subd. 1
(2020). Similarly, Werlich wo uld not be subject to a sta ndard that excuses reasonable
efforts for reunification unless a “child alleged to be in need of prot ection or services is
under the court’s jurisdiction.” Minn. Stat. § 260.012(a). Werlich’s complaint states that
his child is currently living with a custodial parent so neither of these statutes apply to him
presently. Werlich’s claims on these grounds are therefore “hypothetical” and not ripe for
review. Delmont, 36 N.W.2d at 537.
Finally, we consider the justiciability of Werlich’s remaining claims—his claim to
a presumption of innocence, his claims to a trial by jury and to confront witnesses under
the Sixth Amendment, and his claim concerning eligibility for the Challenge Incarceration
Program. The first two claims are recognized fundamental rights that are justiciable only
if the challenged statute is pun itive or criminal in nature. Boutin, 591 N.W.2d at 717.
Accordingly, we consider these claims in the discussion below. As to the claim concerning

18
his eligibility to enter the Challenge Incarceration Prog ram, the Commissioner has not
asserted that this claim is not ripe. Thus, we also address this claim below.
In sum, Werlich’s claims asserting violations of the right to free speech, the right to
be free from unreasonable searches, and the right to interstate travel ar e not justiciable.
Accordingly, the district court did not err in dismissing these claims. We next examine the
justiciable claims relating to his presumption of innocence, his Sixth Amendment claims,
his eligibility to enter the Challenge Incarceration Program, and his right to parent his child.
III.
Werlich asserts that the post- Boutin consequences of regist ration as a predatory
offender who was charged with, but not convic ted of, an enumerated offense violate his
substantive due process rights. The Due Process Clauses of the United States and
Minnesota Constitutions provide that the gover nment cannot deprive a person of “life,
liberty, or property without due process of law.” U.S. Const. amends. V, XIV; Minn.
Const. art. I, § 7. A statute that affects a fu ndamental right is subject to strict scrutiny.
SooHoo, 731 N.W.2d at 821. For those statutes , “the state must s how a legitimate and
compelling interest for abridging that right.” Boutin, 591 N.W.2d at 716. If a fundamental
right is not affected, the plaintiff must show that the statute does not “provide a reasonable
means to a permissible objective.” Id.
A.
Werlich maintains that registration as a predatory offender violates his fundamental
right to a presumption of innocence and his Sixth Amendment rights to both a trial by jury
and to confront witnesses because the state mandates registration not only for a conviction

19
of an enumerated offense but also merely for such a charge.8 The fundamental right to a
presumption of innocence only applies, however, to statut es which are “punitive, or
criminal, in nature.” Boutin, 591 N.W.2d at 717. The same is true for Werlich’s Sixth
Amendment rights. See United States v. O’Laughlin , 934 F.3d 840, 841 (8th Cir. 2019)
(holding that civil commitment is not puniti ve and therefore does not trigger rights under
the Sixth Amendment). The outcome of Werlich’s Sixth Amendment claims therefore
rises and falls with his substantive due pro cess claims to a pres umption of innocence,
namely, whether the challenged statute is punitive.
Whether a statute is punitive or regulatory is a question of legislative intent. See
Smith v. Doe, 538 U.S. 84, 92 (2003). If the Legislature’s intent is to establish a regulatory,
nonpunitive scheme, then we consider the Mendoza-Martinez factors to determine the
“purpose or effect” of that statute. Id. at 92, 97 (quoting Kansas v. Hendricks, 521 U.S.
346, 361 (1997)). These factors are whether: (1) the sanction involves an affirmative
disability or restraint, (2) the sanction has historically been regarded as a punishment,
(3) the sanction comes into play only on a finding of scienter, (4) the sanction’s operation
will promote the traditional aims of punish ment—retribution and deterrence, (5) the
behavior to which the sanction applies is al ready a crime, (6) there exists a rational
alternative purpose to the sanction, and (7) the sanction appears excessive in relation to the

8 Werlich asserts that Minnesota is the only state in the nation with an offender
registration law that requires registration as a predatory offender if an offender is “merely
‘charged with’ a predatory offense and then convicted of any other offense—no matter
how minor—that arises from the same set of circumstances as the predatory offense
charge.”

20
alternative purpose assigned. Mendoza-Martinez, 372 U.S. at 168–69. These factors are
“neither exhaustive nor dispositiv e; rather, they serve as usef ul guideposts to determine
whether a statute creates a civil or criminal sanction.” Rew v. Bergstrom, 845 N.W.2d 764,
792 (Minn. 2014).
Werlich specifically argues that his ine ligibility for the Cha llenge Incarceration
Program and that being subject to mandatory investigation for threatened sexual abuse
merely for living with his child—two post-Boutin consequences of the predatory offender
registration requirement—are each punitive. We address them in turn.
1.
Werlich asserts that excluding him from eligibility for the Program based upon an
enumerated offense for which he was not convicted is punitive because the Program offers
a form of conditional release. He maintains that “revocatio n of supervised release is a
paradigmatic form of punishment.” See United States v. Haymond , ___ U.S. ___, 139 S.
Ct. 2369, 2386 (2 019) (Breyer, J., concurring) (noting that “[r]evocation of supervised
release is typically understood as part of the penalty for the in itial offense” (citation
omitted) (internal quotation marks omitted)); see also United States v. Bennett , 561 F.3d
799, 802 (8th Cir. 2009). Werlich argues that there is no need to apply the
Mendoza-Martinez factors to conclude that the “transformation of an anticipated six-month
stay in boot camp into a four-year prison term is punitive.” According to him, application
of the factors merely reinforces this conclusion.
The cases cited by Werlich are inapposite as they specifically dealt with offenders
whose supervised release was re voked because of a violation of the terms of the release.

21
See Haymond, ___ U.S. at ___, 139 S. Ct. at 2380 (explaining that because supervised
release arises from the initial offe nse, “whether that release is later revoked or sustained,
it constitutes a part of the final sentence for his crime.” (emphasis added)). Indeed, “parole
release and parole revocation are quite different.” Greenholtz v. Inmates of Neb. Penal &
Corr. Complex, 442 U.S. 1, 9 (1979) (noting the “crucial distinction” between the “liberty
one has, as in parole, and bein g denied a conditional liberty th at one desires”). Here, the
issue is whether Werlich is eligible to part icipate in the Program, which provides an
opportunity for conditional release.
Conditional release is generally availabl e to any person in the custody of the
Commissioner. Minn. Stat. § 243.05, subd. 1( a) (2020). The Legislature has, however,
substantially limited conditional re lease for certain crimes, such as first-degree murder.
Id., subd. 1(a)(2). Moreover, the United St ates Supreme Court has held that no
constitutional right to cond itional release exists. Greenholtz, 442 U.S. at 7. Conditional
release involves numerous considerations in cluding whether release “will minimize the
gravity of the offense, weaken the deterrent impact on othe rs, and undermine respect for
the administration of justice.” Id. at 8.
Application of the Mendoza-Martinez factors demonstrates that the Legislature did
not intend for the Program eligibility exclusion to be punitive. Some factors do admittedly
suggest that the Program’s eligibility exclusion for those predatory offenders charged with,
but not convicted of, an enumerated offense could be considered punitive. For example,
excluding an offender from obt aining conditional release does appear to be historically
regarded as punishment. See Minn. Stat. § 243.05, subd. 1(a)(2) (excluding first-degree

22
murder offenders from eligibility for conditional release). In addition, restricting eligibility
for conditional release is relevant to deterrence, one of the traditional aims of punishment;
the Supreme Court has recognized that aw arding conditional release may weaken the
deterrent impact on others. Greenholtz, 442 U.S. at 8. These fa ctors weigh in favor of
finding the Program eligibility exclusion punitive.
The fifth Mendoza-Martinez factor—whether the restriction applies to behaviors
that are already crimes—does not favor either conclusion. Mendoza-Martinez, 372 U.S. at
168. The Program eligibility exclusion is not predicated on a present or repeated violation.
Instead, it is predicated on past conduct, which was, and is, a crime. As we made clear in
Rew, 845 N.W.2d at 793, such past conduct do es not favor a conclusion that a sanction is
a criminal penalty or a civil remedy.
On the other hand, the Program’s eligibility exclusion does not require a finding of
scienter in all cases. For example, an offender who has fe wer than 180 days remaining
until a supervised release date or has an enum erated medical condition is not eligible for
the Program. Minn. Stat. § 244.17, subd. 3(a)(6), (10) (2020). Neither of these conditions
require scienter. Like the extended order for protection in Rew, 845 N.W.2d at 793, which
could come into play with or without a criminal convic tion, the Program eligibility
exclusion can come into play with or without a criminal conviction. Thus, the third
Mendoza–Martinez factor favors the conclusion that the Program exclusion is a civil
remedy.
The Program exclusion also does not involv e a significant affirmative restraint, an
important factor in this analysis. See Smith, 538 U.S. at 100 (“If the disability or restraint

23
is minor and indirect, its effects are unlikely to be punitive.”). Instead, the exclusion merely
subjects Werlich to the full term of his sentence. See Greenholtz, 442 U.S. at 7; see also
Minn. Stat. § 244.171, subd. 4 (2020) (stati ng that an offender who is removed from the
Program for a violation cannot be held past the term of imprisonment).
In addition, a clear alternative purpose for the exclusion exists, namely to prioritize
those offenders whom the Legislature believes would be most likely to respond well to the
Program and to comply with early release. See Minn. Stat. § 244.171, subd. 1 (2020)
(stating that the goals of the Program include “protect[ing] the safety of the public” and
“prepar[ing] the offender for successful reintegration into society”).
Nor does the exclusion appear to be excessive in relation to that alternative purpose.
As with all government programs, the Program has limited resources to achieve its goal of
rehabilitation, and categorical exclusion of certain persons to further that goal is not
inherently unreasonable. See, e.g. , Minn. Stat. § 244.17, subd. 2(a)(2) (2020) (only
allowing offenders with less than 48 months in their sentence to be eligible for the
Program). These two factors also weigh against finding the eligibility exclusion punitive.
We give considerable weight to the fina l two factors, the alternative purpose and
excessiveness in relation to that purpose. See Schall v. Martin, 467 U.S. 253, 269 (1984)
(“Absent a showing of an express intent to punish on the part of the State, [whether a statute
is punitive] generally will turn on” the final two factors). It is ultimately not our place to
substitute the Legislature’s choice of priorities with our own. See Skeen v. State ,
505 N.W.2d 299, 312 (Minn. 1993). We therefore conclude that, on balance, the Program
eligibility exclusion based on predatory offender registration status is not punitive and the

24
district court correctly dismissed Werlic h’s Sixth Amendment and presumption of
innocence claim on this basis.
2.
Werlich next argues that the collateral consequences that result from predatory
offender registration, specifically the investigation of threatened sexual abuse mandated by
section 626.556, subdivisi on 1(b)(3), are also punitive. 9 We disagree. Applying the
Mendoza-Martinez factors to this particular consequence shows that it is not punitive.
Only one factor suggests that the consequence is punitive. Mandatory investigation
is required for some behaviors that are alr eady crimes. For example, if a person is
convicted of an enumerated offense and ther eby required to register under the predatory
offender statute, that person is also subject to the investigation mandated for alleged sexual
abuse or child endangerment. Minn. Stat. § 626.556, subd. 1(b)(3).
All of the other Mendoza-Martinez factors weigh in favor of concluding that the
collateral consequences represented by the i nvestigations directed by section 626.556,
subdivision (1)(b)(3) are civil, regulatory measures to which the presumption of innocence
and Sixth Amendment rights do not attach. For example, the investigation itself is not an
affirmative disability or restraint. Werlich is subject to investigation, but his registration
status alone does not bar him from living with his child. And even if an investigation
concluded that Werlich should not be permitted to live with his child, the State would still

9 The investigation is mandated because th reatened sexual abuse includes “the status
of a parent . . . who has co mmitted a violation which require s registration as an offender
under section 243.166, subdivision 1b, paragraph (a) or (b).” Minn. Stat. § 626.556, subd.
2(n).

25
need to initiate the appropriate proceedings in court, in which Werlic h would receive
procedural protections.
Next, conducting an investigation does not appear to have been historically regarded
as punishment. Conviction of an offense al one does not, for example, require summary
termination of parental rights. See Minn. Stat. § 260C.301 (2020) (listing the grounds for
termination of parental rights). In additi on, allegations of neglect can support an
investigation into the maltreatment of a child, Minn. Stat. § 626.556, subds. 1(g) (defining
neglect), 3(b) (allowing any person to report suspected neglect), but a finding of scienter
is not required for that investigation. Nor are the traditional aims of punishment met when
the circumstances require an investigation. The purpose of any investigation is “to prevent
or provide a remedy for child maltreatment.” Minn. Stat. § 626.556, subd. 10(b) (2018);
see also id., subd. 1(a) (stating the policy is to “p rotect children” and address “immediate
concerns for child safety”). These objectiv es focus on the child, not on deterring the
predatory offender from committing miscondu ct or exacting retribution against the
offender.
Further, a clear alternative purpose exists for mandating investigations in the case
of a registered predatory offender. When a person is convicted of an enumerated offense,
which typically involves injury to another pe rson, or for an offense for which probable
cause supports an enumerated charge, at leas t some evidence exis ts that the person
committed an offense that would generally risk the welfare of a child. Indeed, many of the
enumerated offenses under the registration statute are crimes involving sexual misconduct
or crimes against children. See Minn. Stat. § 243.166, subd. 1b(a)(1)(iii)–(iv); see also

26
Stanley v. Illinois , 405 U.S. 645, 652 (1972) (noting that “the moral, emotional, mental,
and physical welfare” of children are “legitimate interests” of the state).
Finally, an investigation is not excessive in relation to the alternative purpose of
protecting children. As noted above, even if an investigation has begun, the agency must
still make a determination of maltreatment, and if judicial proceedings are initiated, the full
procedural protections provided in those proceedings will apply.
In sum, we conclude that the inves tigation mandated by section 626.556,
subdivision 1(b)(3), for a registered predatory offender such as Werlich, who is living with
(or intends to live with) his child, is “a civil, regulator y” measure to which “the
presumption of innocence does not attach.” Boutin, 591 N.W.2d at 717. Accordingly, this
claim is not subject to strict scrutiny. Id.
3.
Having found that strict scrutiny is inapplicable to the above claims, we must decide
whether these particular post-registration collateral consequences—the Program eligibility
exclusion and mandated investigation for th reatened sexual abuse—satisfy rational basis
review. See In re Individual 35W Bridge Litig. , 806 N.W.2d 820, 832–33 (Minn. 2011)
(concluding on a motion to dismiss that co mpensation statutes satisfied rational basis
review). The same reasons that support our conclusion that section 626.556, subdivision
1(b)(3), and the eligibility exclusion are not punitive, support the conclusion that these
regulatory measures are “rationally related to a legitimate government interest.” Id. at 830.
Specifically, exclusion from the Challenge Incarceration Program is rationally related to
the State’s interest in preserving program re sources for those most likely to respond well

27
to the rehabilitative nature of the boot-camp approach. Similarly, the State has a legitimate
interest in the welfare of children, see State v. Holloway , 916 N.W.2d 338, 346 (Minn.
2018), and scrutinizing those who are charged with or convicted of crimes—predominantly
those of violence or sexual offenses against children—is rationally related to that end, see
Boutin, 591 N.W.2d at 718.
For these reasons, Werlich’s due process claim, to the extent based on the
presumption of innocence and Sixth Amendment trial rights, fails as a matter of law
because the statutory provisions he challenges—Minn. Stat. § 244.17, subd. 3(a)(4), Minn.
Stat. § 626.556, subd. 1(b)(3)— are not punitive. We furthe r hold that these challenged
provisions meet rational basis review. We therefore affirm the district court’s dismissal of
this claim.
B.
Werlich next makes a separate claim, na mely that the investigation mandated by
subdivision 1(b)(3) of section 626.556 violates substantive due process because it affects
his fundamental right to parent his child. “A parent’s right to make decisions concerning
the care, custody, and control of his or her children is a protected fundamental right.”
SooHoo, 731 N.W.2d at 820. For example, in SooHoo, we declared unconstitutional one
subdivision of a statute that “impermissibly plac[ed] the burden on the custodial parent to
prove that [third-party] visitation would inte rfere with the parent-child relationship.” Id.
at 824. But we also upheld a different su bdivision in the same statute that limited
“third-party visitation to those who have a longstanding parent-child relationship with the
child and prohibit[ed] the district court from granting” that vi sitation if not in the child’s

28
interests and allowing it would “interfere[] with the custodi al parent’s relationship.” Id.
We did so because the statut e was narrowly tailored to achi eve the “state’s compelling
interest in protecting the general welfare of children by preserving the relationships of
recognized family units.” Id.
Section 626.556, subdivision 1(b)(3), affects Werlich’s alleged fundamental right to
parent to the same extent that the third-party visitation statute affected the right to parent
in SooHoo. There, the third-party visitation statute only permitted a person to petition for
a visitation order; it did not guarantee that the visitation would be allowed. Similarly,
subdivision 1(b)(3) obligates the agency to investigate because the definition of “threatened
sexual abuse” in subdivision 2(n) encompasse s Werlich. But the required investigation
does not guarantee that Werlich will be forbidden from living with his child.
On the other hand, the statute in SooHoo did affect a fundamental right to parent
based on an improper allocation of the burden of proof, see 731 N.W.2d at 824. Werlich’s
claim that the investigation mandated by sec tion 626.556, subdivision 1(b)(3), affects his
fundamental right to parent his child implicates the presumption that he is a fit parent, see
In re Welfare of Child of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014), who is presumed to
act in the child’s best interests. SooHoo, 731 N.W.2d at 824. Given our deferential
standard of review, see Elzie, 298 N.W.2d at 32, this clai m survives the Commissioner’s
motion to dismiss. Further, this claim is subj ect to strict scrutiny. Because Werlich has
sufficiently alleged facts that, if proven, establish that the investigation mandated as a result
of his registration status affects a fundam ental right, on remand the Commissioner bears

29
the burden to show that this statute advanc es a compelling government interest and is
narrowly tailored to serve that interest. See SooHoo, 731 N.W.2d at 821–22.
IV.
Werlich next asserts that the consequences of registration based on his charged, but
not convicted, enumerated offense violate procedural due process. Procedural due process
involves two questions. First, is there “a li berty or property interest with which the state
has interfered[?]” Carrillo v. Fabian, 701 N.W.2d 763, 768 (Minn. 2005). Second, were
the procedures used constitutionally sufficient? Id.
A liberty interest includes, but is not limited to, fundamental rights. See Carrillo,
701 N.W.2d at 768–69. State law can also “cr eate liberty interests that are protected by
due process.” Id. at 769. Although a particular statutory right may not be protected under
substantive due process, the statutory right ne vertheless requires procedural due process.
See id. A person may also have a liberty inte rest under the “stigma-plus” doctrine. See
Paul v. Davis , 424 U.S. 693, 701–02 (1976). Under th is doctrine, “a liberty interest is
implicated when a loss of re putation is coupled with the loss of some other tangible
interest.” Boutin, 591 N.W.2d at 718.
We have concluded above that Werlich has alleged sufficient facts that, if proven,
may support a substantive due process violation based on his fundamental right to parent.
Accordingly, his complaint al so states sufficient facts that, if proven, may support a
procedural due process claim based on a protectable liberty interest. See Santosky v.
Kramer, 455 U.S. 745, 754–55 (ana lyzing a fundamental right to parent liberty interest
under procedural due process).

30
Werlich also alleges a protectable liberty interest in the opportunity for conditional
release under the Program. He maintains th at his eligibility exclusion from the Program
violates procedural due process because a statutory right to conditional release exists. He
is correct that when release is mandated by statute, a liberty interest is created. See Bd. of
Pardons v. Allen, 482 U.S. 369, 378 n.10 (1987). In Carrillo, we held that the supervised
release statute, Minn. Stat. § 24 4.101, subd. 1 (2020), gives rise to a liberty interest in a
release date from prison. Carrillo, 701 N.W.2d at 771–73. Supervised release under
Minnesota law includes “a presumption from the moment that a court imposes and explains
the sentence that the inmate will be releas ed from prison on a certain date” unless the
inmate commits a disciplinary offense. Id. at 772. The inmate consequently has a
“concrete expectation of release,” id. at 772, n.6, which gives ri se to a liberty interest, id.
at 773.
Werlich argues that Carrillo grants a liberty interest in conditional release too,
including under the Program. And, Werlic h contends, although the Commissioner has
discretion on who to admit into the Program, he does not have the discretion to determine
who is eligible for the Prog ram. The Commissioner counters that the discretion afforded
to him concerning admission into the Program means that no particular person has a right
to participate in the Program. According to the Commissioner, the Legislature acted within
its authority when it set eligibility criteria that excluded registered predatory offenders like
Werlich from the Challenge Incarceration Program.
We agree with the Commissi oner. Unlike supervised release under Minnesota
Statutes section 244.101, which was at issue in Carrillo, the Challenge Incarceration

31
Program is not a “mandatory” program av ailable to all convicted persons. Carrillo,
791 N.W.2d at 778. An inmate is not “entitled” to participate in it, nor is the Commissioner
“obligated” to accept a par ticular person into it. Id. The Legislature chose to restrict
eligibility for the Program based on a number of criteria, including by making registered
predatory offenders ineligible. See generally Minn. Stat. § 244.17. Although the statute
provides that the Commissioner “shall strive” to get the program to capacity, Minn. Stat.
§ 244.17, subd. 1(b), this language seems mo re like a policy directiv e than the sort of
mandatory language we found decisive, for liberty interest purposes, in the supervised
release statute. See Carrillo, 701 N.W.2d at 773; id. at 778 (Page, J., concurring). We
conclude that Werlich failed to state a claim that he has a liberty interest in the opportunity
for conditional release provided by Program that is subject to procedural due process.
Accordingly, we affirm the district court’s dismissal of this procedural due process claim.
In sum, the district court’s determinati on that Werlich had no protectable liberty
interests sufficient to invoke a claim of procedural due process was erroneous as to his
liberty interest in his right to parent. We leave it to the parties, upon remand, to litigate
whether the procedural process afforded to Werlich concerning his right to parent is
sufficient under the Mathews balancing test. See Mathews v. Eldridge, 424 U.S. 319, 335
(1976); Rew, 845 N.W.2d at 786 (applying Mathews).
V.
Finally, Werlich argues that the predatory offender registration statute violates the
separation of powers doctrine because it interfere s with a prosecutor’s decision “whether
to bring, and how to prosecute, criminal charges.” In re Death of VanSlooten, 424 N.W.2d

32
576, 578–79 (Minn. App. 1988), rev. denied (Minn. July 28, 1988). Werlich insists that
the statute deters prosecutors from bringing enumerated charges because doing so ties their
hands for future plea bargaining. The Commissioner responds that the Legislature properly
decided that persons wh o have been convicted of crimes arising out of the same set of
circumstances as an enumerated charge must register as predatory offenders. This
collateral consequence, acco rding to the Commissioner, is outside the purview of the
prosecutor.
Under the separation of powe rs doctrine, a prosecutor has broad discretion in the
decision to bring criminal charges. State v. Foss , 556 N.W.2d 540, 540 (Minn. 1996).
Although “the imposition of the sentence within the limits prescribed by the legislature is
purely a judicial function,” State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982), the “power to
define the conduct which constitutes a criminal offense and to fix the punishment for such
conduct is vested in the legislature.” Id. at 17–18.
We agree with the Commissioner; the Legislature has not impermissibly constrained
a prosecutor’s discretion in the predatory offe nder registration statute. A prosecutor has
discretion not to bring an enumerated charge in the first place, or instead to bring it later in
an amended complaint. See, e.g., State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990) (noting
prosecutor’s discretion to amend a criminal complaint). The prosecutor here was also free
to avoid the registration requirement by not charging the offenses that arose out of the same
set of circumstances. In the same vein, a prosecutor who agrees to a plea deal that involves

33
a charge with a mandatory minimum 10 has no control over the consequence of that
conviction. See State v. Jonason , 292 N.W.2d 730, 734 (Minn. 1980) (upholding
mandatory minimum sentences). Similarly, if a prosecutor agrees to a plea deal that
involves a charge that arises out of the sa me set of circumstances as a charged, but
dismissed, enumerated offense, she has no control over the consequences of registration.11
We therefore hold that the predatory offende r registration statute does not violate the
separation of powers doctrine, and the district court did not err in dismissing this claim.
VI.
To provide clear direction to the distri ct court and the parties on remand, we
summarize our disposition here. We hold that our decision in Boutin does not foreclose all
constitutional challenges to the expanded stat utory consequences of predatory offender
registration as applied to a person charged with, but not convicted of, an enumerated
offense.
We affirm the district court’s dismissal of Werlich’s claims that assert a substantive
due process violation in predatory offender registration based on the potential impacts on

10 The prosecutor may move before the sentencing court to ignore the mandatory
minimum, but only if “substantial mitigating factors exist.” See Olson, 325 N.W.2d at 14
(quoting Minn. Stat. § 609.11, subd. 8 (Supp. 1981)).

11 We also note that a judge reviews charges to ensure they are supported by probable
cause. State v. Koenig , 666 N.W.2d 366, 372 (Minn. 2003 ) (explaining that a probable
cause hearing protects the defe ndant from being compelled to stand trial on unjust or
improper charges). Moreover, a court can “e xercise its own discretion” when reviewing
plea agreements if it concludes that conviction on one offense, when a charged enumerated
offense on which there is no conviction will result in regi stration (and its collateral
consequences), is unjust. Johnson v. State, 641 N.W.2d 912, 917–18 (Minn. 2002) (courts
may reject plea agreements that result in injustice).

34
his parental rights, under Minnesota Statut es section 260C.503, subdivision 2(a)(6)
(regarding immediate filing of a termin ation of parental rights petition), and
section 260.012(a) (relieving a court of an obligation to make “reasonable efforts” to
reunite a parent and child). We also affirm the district court’s dismissal of his claims
asserting due process violati ons based on a fundamental right to a presumption of
innocence; his Sixth Amendment rights; his right to interstate travel; his right to free
speech; and his right to be free from unreasonable searches. We further affirm the district
court’s dismissal of Werlich’s claim based on an alleged separation of powers violation.
We reverse, however, the district court’s dismissal of Werlich’s claim of substantive
and procedural due process violations based on his alleged fundamental right to parent his
child. We conclude that Werlich has suffici ently pleaded that his fundamental right to
parent is affected by the investigation mand ated by Minnesota Stat utes section 626.556,
subdivision 1(b)(3), based on his status as a registered predatory offender. See id., subd.
2(n). If, on remand, he succeeds in proving th e facts that he has alleged, the burden of
strict scrutiny requires the St ate to show that this manda ted investigation advances a
compelling government interest and is narrowly tailored to serv e that interest, as applied
to Werlich. Concerning Wer lich’s remaining procedural due process claim based on his
liberty interest in his right to parent, upon remand, Werlich has the burden of showing that
the process afforded to him was constitutionally insufficient.

35
CONCLUSION
For the foregoing reasons, we affirm in part and reverse in part the decision of the
court of appeals and remand to the district c ourt for further proceedings consistent with
this opinion.
Affirmed in part, reversed in part, and remanded.

C/D-1
C O N C U R R E N C E / D I S S E N T
GILDEA, Chief Justice (concurring in part, dissenting in part).
The majority dismisses all of Werlich’s cl aims except a claim based on a right to
parent his biological child. While I do not agree with much of the majority’s analysis, I do
agree with the majority’s conclusion to the extent it affirms the dismissal of the claims the
district court dismissed. But because I di sagree with the majority ’s conclusion that
Werlich’s right to parent claim survives even under a liberal pleading standard, I
respectfully dissent.
Werlich filed a complaint asse rting only three claims. In Count I, Werlich sought
injunctive relief under 42 U.S.C. § 1983, from his classification as a predatory offender,
which he alleged excluded him from participating in the Challenge Incarceration Program
(“Program”), placed him in a close-security pr ison facility with a no-contact order that
prevented visitation with his biological child , and violated his right to substantive and
procedural due process as well as his rights under the Sixth Amendment. In Count II,
Werlich sought a declaratory judgment that the predatory offender registration statute,
Minn. Stat. § 243.166 (2020), is unconstitutional because the statute imposes punishment
based on unproven allegations. And in Count III, Werlich sought a declaratory judgment
that he meets the eligibility requirements for the Program under Minn. Stat. § 244.17
(2020).
The district court granted the Department ’s motion to dismis s Werlich’s claims,
except for his challenge to the prison visita tion restriction, which was subsequently
dismissed by the parties. The court of appeal s affirmed the district court, finding that

C/D-2
Werlich is not eligible for admission to th e Program and his cons titutional claims lack
merit.
The majority’s analysis is largely untether ed to the complaint. Rather than address
just the claims alleged in the complaint, the majority contends that Werlich has additional
claims for alleged violations of his right to parent, right to live with his child, right to travel,
right to be free from unreasonable searches and seizures, right to free speech, and right to
the presumption of innocence.
The majority affirms the dismissal of all of Werlich’s claims, both those pleaded
and those the majority imagines he pleaded, except for his claim of violation of his right to
parent. The majority’s analysis appears to find that some of the claims are not justiciable.
Specifically, the majority concludes that an alleged violation of the Fourth Amendment is
moot, an alleged violation of the right to travel is “without merit,” and other alleged
violations of Werlich’s right to live with his biological child are hy pothetical. Next, the
majority appears to agree with the district c ourt’s decision to dismiss some of the claims,
concluding that the registration statute is not punitive under the test announced in Kennedy
v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963). Specifically, the majority concludes
that Werlich’s exclusion from the Program is not punitive and the statute subjecting him to
mandatory investigation based on his registered status is not punitive. Next, the majority
appears to dismiss one claim based on Werlich’s inability to show that he has a valid liberty
interest in his participation in the Program. Finally, the majority dismisses the remaining
claim, which the majority characterizes as alleging a violation of separation of powers
principles, as a matter of law.

C/D-3
I agree with the majority that the pred atory offender registration statute is not
punitive for the reasons we explained in Boutin v. LaFleur, 591 N.W.2d 711 (Minn. 1999).
As a result, I would hold that the three claims alleged by Werlich in his complaint fail as a
matter of law.1
In addition, to the extent that Werlich a lleges a claim for viola tion of his right to
parent that is separate from his dismissed prison-visitation-restriction claim, I would
uphold the district court’s dismissal of that claim because Werlich does not have standing
to make it. Werlich alleged in his complaint that he is the biological father of a child. But
the complaint states that Werlich is not married to the child’s mother, and it does not allege
a basis for any claimed physical or legal custodial rights.
In Minnesota, an assertion that one is the biological father of a child does not equate
to custodial rights over the child. In fact, wh en the biological parents are not married at
the time of the child’s birth or conception, the mother is given “sole custody of the child
until paternity has been established.” Minn. Stat. § 257.541, subd. 1 (2020). Because the
complaint does not allege that Werlich was married to the child’s mother at the time of the
birth or conception, or any other basis upon which paternity has been established, there is
no basis upon which to presume, as the majority does, that Werlich has any parental rights
at all. See Heidbreder v. Carton , 645 N.W.2d 355, 372–73 (M inn. 2002) (holding that

1 In Boutin, we held that the consequences of re gistration did not result in a “loss of
a recognizable interest” that could give rise to a liberty interest under procedural due
process. 591 N.W.2d at 718–19 (applying the “stigma-plus” test of Paul v. Davis, 424 U.S.
693 (1976)). Although the statute has changed, the federal and state constitutions have not.
Boutin still controls.

C/D-4
putative father was not entitled to due process protection of his inte rest in his putative
child).2 And because the complaint does not set fo rth a factual predicate for any physical
or legal custodial rights, there is no basis on which to ground a due process claim for
interference with a non-existent right to parent.
SooHoo v. Johnson, the only case on which the majority relies to find that Werlich’s
“right to parent” claim is viable, is not to the contrary. 731 N.W.2d 815 (Minn. 2007).
SooHoo involved a challenge to the constitutionality of Minn. Stat. § 257C.08, subd. 4
(2006), which allowed a person who no longer lives with a child, but did for two or more
years, to petition the district court for visitation rights. 731 N.W.2d at 818. The mother of
the children in SooHoo argued that the statute would interfere with her right to parent her

2 The majority insists that Werlich has standi ng to assert a claim based on his right to
parent because he has asserted sufficient fa cts in the complaint to establish a personal
relationship with his child. Indeed , the majority claims that under Lehr v. Robertson ,
463 U.S. 248 (1983), a person w ho has expressed “interest in personal contact with his
child acquires substantial protection under the due process clause.” See supra at 16 (citing
Lehr, 463 U.S. at 261). However, the question presented in Lehr was whether “a putative
father’s actual or potential rela tionship with a child born out of wedlock is an interest in
liberty” and provides “a constitutional right to prior notice and an opportunity to be heard
before he [is] deprived of that interest.” 463 U.S. at 255. The United States Supreme Court
observed that “[t]his court has examined the ex tent to which a natura l father’s biological
relationship with his child receives protecti on under the Due Process Clause in precisely
three cases” and went on to hold that a biological connection to a child, by itself, is not
enough to provide constitutional protection for the future deve lopment of a parent-child
relationship. Id. at 258, 261–62. Ultim ately, the Supreme Court determined that the
putative father’s constitutional rights were not “offended” by the lack of notice given to
him prior to the adoption of his biological child. Id. at 265. In Heidbreder, we applied the
principle from Lehr that a biological connection is no t enough to invoke due process
protection. 645 N.W.2d at 372. I do not read Lehr or Heidbreder to suggest that a
procedural due process claim can be premised on an individual’s personal relationship with
a child. As stated abov e, the relevant inquiry is whether an individual has established or
alleged physical or legal custodial rights to a biological child. In this case, Werlich has not
done so.

C/D-5
children if her former domestic part ner was given visitation rights. Id. at 819–20. There
was no question in SooHoo that the person claiming violati on of the right to parent—the
mother—had the right to parent. She adopted the children years earlier and they continued
to reside with her, and we described her as the children’s “custodial parent.” 731 N.W.2d
at 818, 823.
In this case, by contrast, there are no facts alleged in the complaint that establish or
even suggest that Werlich has any physical or legal custodial rights to his biological child.
Accordingly, I would hold that Werlich lacks standing to assert his “right to parent” claim.
I would therefore affirm the decision of the court of appeals.

McKEIG, Justice (concurring in part, dissenting in part).
I join in the concurrence and dissent of Chief Justice Gildea.