In the Matter of the Civil Commitment of: Eugene Christopher Banks.

This opinion will be unpublished and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
A19-0874

In the Matter of the Civil Commitment of:
Eugene Christopher Banks.

Filed November 18, 2019
Affirmed
Cochran, Judge

Commitment Appeal Panel
File No. AP18-9101

Eugene C. Banks, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Drew D. Bredeson, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

James Backstrom, Dakota C ounty Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent Dakota County)

Considered and decided by Cochran, Presiding Judge; Connolly, Judge; and
Johnson, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Eugene Christopher Banks cha llenges the commitment appeal panel’s
order denying his petition for discharge and granting respondent Commissioner of Human
Services’ motion to dismiss pursuant to Minn. R. Civ. P. 41.02(b). We affirm.

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FACTS
Banks was indeterminately committed to the Minnesota Se x Offender Program
(MSOP) as a sexually dangerous person (SDP) in 1999 based on sexual offenses committed
against three different minor females. Si nce his initial commitment in 1999, Banks has
chosen not to participate in sex-offender treatment.
In October 2017, Banks petitioned the speci al review board (SRB) for a discharge
from civil commitment. In pr eparation for the hearing on Banks’s petition, MSOP staff
prepared a treatment report and a sexual-viol ence risk assessment for the SRB. Both
reports recommended denying Banks’s petition.
In June 2018, the SRB held a hearing on Banks’s petition for a reduction in custody.
Although Banks requested a “dis charge only,” the SRB consid ered alternative reductions
in custody including transfer, provisional discharge, and full discharge. Finding that Banks
did not meet the statutory criteria for transfer, provisional discharge, or full discharge, and
that Banks was “well above the average risk of re-offending,” the SRB recommended
denial of the petition.
In August 2018, Banks petitioned th e supreme court fo r rehearing and
reconsideration of the SRB’s findings of fact and recommendati on. The petition was
referred to the commitment appeal panel for consideration. The commitment appeal panel
appointed Dr. Linda Marshall to conduct a psychological evaluation of Banks pursuant to
Minn. Stat. § 253D.28, subd. 2(c) (2018). In January 2019 , Dr. Marshall completed the

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evaluation report. The report co ncluded that Banks did not meet the statutory criteria for
discharge.1
After completion of the evaluation report , the commitment appeal panel held a
first-phase hearing on Banks’s petition. At the hearing, Banks withdrew “any theoretical
request” for transfer or provisional discharge. Instead, he proceeded solely on the petition
for full discharge.
During the hearing, Banks testified on hi s own behalf. Banks, who was 47 years
old at the time, testified that he would not reoffend due to his age. Banks maintained that
he had “grown up” and “aged out of the system .” Banks also testified that he does not
believe in sex-offender treatment and ackno wledged that he had not participated in
sex-offender treatment at any time during his commitment. Banks expressed his belief that
he would adjust well if discharged and discussed the steps he had taken to prepare for
discharge, including contacting potential employers, establishing a credit history, looking
into housing options, and communicating with his family.
Banks introduced several exhibits into the record, including a discharge plan and a
series of scholarly articles. The discharg e plan contained advice on how to contact
potential employers, find housing, and integrate into societ y. The scholarly articles
discussed sexual risk assessments, treatmen t of predatory offenders, and constitutional

1 Although the SRB conducted evaluations for transfer, provisional discharge, and a full
discharge, the panel and D r. Marshall, based on Banks’ s request, only conducted
evaluations for a full discharge.

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issues related to civil commitment. The arti cles argue that courts should opt for longer
prison sentences instead of shorter sentences followed by civil commitment.
Banks also called two MSOP security counselors to testify. The duties of a MSOP
security counselor are similar to that of a prison guard. Neither security counselor offered
an opinion about whethe r Banks met the statutory criteria for discharge. Instead, the
security counselors testified about their inte ractions with and personal observations of
Banks. The security counselors testified that Banks is polite and respectful and that he has
not acted aggressively or violently while committed. Neither security counselor observed
sexual behavior by Banks while committed. Bo th security counselors acknowledged not
being qualified to give a professional opinion about Banks’s risk of re-offense.
Banks called no other witnesse s. Banks’s attorney expr essly stated on the record
that Banks was not calling an expert to pres ent testimony on the statutory criteria for
discharge. Additionally, Banks did not reques t to have an expert appointed to present
testimony on his behalf.
At the end of the hearing, the commissioner moved for dismissal of Banks’s petition
arguing that Banks failed to provide competent evidence to support a prima facie case for
discharge. The commitment appeal panel granted the motion to dismiss and denied
Banks’s petition for discharge. The panel c oncluded that Banks ha d not presented any
competent evidence to meet the statutory criteria for discharge, and that his
“uncorroborated assertions that he is no longer dangerous and does not need treatment” are
not enough to meet his burden of production.
Banks appeals.

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D E C I S I O N
Banks argues that the comm itment appeal panel erred in denying his petition for
discharge because the evidence he presented was sufficient to establish a prima facie case.
Banks also contends that th e commitment appeal panel er red by making inappropriate
credibility determinations. Finally, Banks cl aims a number of due process and statutory
violations. We first address whether the co mmitment appeal panel erred in denying the
petition based on the evidence in the record and then turn to the other challenges.
I. The commitment appeal panel did not err in denying Banks’s petition for
discharge and granting the commissioner’s motion to dismiss.

Minnesota Statutes chapter 253D governs matters involving SDPs. See Minn.
Stat. §§ 253D.01-.36 (2018). Section 253D.31 se ts forth the discharg e requirements for
SDPs:
A person who is committed as a sexually dangerous
person or a person with a sexual psychopathic personality shall
not be discharged unless it appe ars to the satisfaction of the
judicial appeal panel, after a hearing and recommendation by a
majority of the special review board, that the committed person
is capable of making an acceptable adjustment to open society,
is no longer dangerous to the pu blic, and is no longer in need
of treatment and supervision.
In determining whether a discharge shall be
recommended, the special review board and judicial appeal
panel shall consider whether specific conditions exist to
provide a reasonable degree of pr otection to the public and to
assist the committed person in adjusting to the community. If
the desired conditions do not exis t, the discharge shall not be
granted.

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This statute includes a three-part test for discharge: that the person (1) is capable of making
an acceptable adjustment to open society; (2) is no longer dangerous to the public; and
(3) is no longer in need of treatment and supervision. Minn. Stat. § 253D.31.
Construing a predecessor to section 253D. 31 containing similar language to the
current statute, the supreme court concluded th at a person can remain confined to MSOP
“for only so long as he or she continues both to need further inpatient 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,
252-53 (Minn. App. 2018) (applying Call in a case involving Minn. Stat. § 253D.31
(2016)), review denied (Minn. Apr. 17, 2018). In Call, the supreme court essentially recast
the statutory three-part test for discharge into a two-part test.
As a procedural matter, a committed person seeking discharge has the initial burden
of going forward with evidence to demonstrate the person meets the criteria for discharge,
“which means presenting a prima facie case w ith competent evidence t o s h o w t h a t t h e
person is entitled to the requested relief.” Minn. Stat. § 253D.28, subd. 2(d). To establish
a prima facie case, Banks is required to produce evidence demonstrating that he is no longer
dangerous to the public, and is no longer in need of treatment and supervision. See Minn.
Stat. § 253D.31; Call, 535 N.W.2d at 319.
A committed person produces evidence at what is co mmonly referred to as a
first-phase hearing. Coker v. Jesson, 831 N.W.2d 483, 486 (Minn. 2013). If the committed
person establishes a prima facie case, the burden then shifts to the opposing party to show
by clear and convincing evidence th at discharge should be denied. Id.; see Minn.

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Stat. § 253D.28, subd. 2(d). The proceeding in which the opposing party carries the burden
is known as the second-phase hearing. Coker, 831 N.W.2d at 486.
At the close of the first-phase hearing, the commissioner may move to dismiss the
petition on the basis that the committed pers on has not put forth su fficient evidence to
establish a prima facie case for discharge. See Minn. R. Civ. P. 41.02(b). In determining
whether the petitioner has established a prima facie case, the panel must view the evidence
“in a light most favorable to the committed person.” Coker, 831 N.W.2d at 491. The panel
“may not weigh the evidence or make credibility determinations.” Id. at 490.
We review de novo the panel’s dismissal of a discharge petition at the close of a
petitioner’s case-in-chief. Larson v. Jesson, 847 N.W.2d 531, 534 (Minn. App. 2014).
A. Banks presented insufficient evidence to establish a prima facie case for
discharge.

Banks contends that the evidence he pr esented at the first-phase hearing was
sufficient to meet his burden to establish a prim a facie case for discharge. We disagree.
Our independent review of the evidence confir ms that the panel correctly concluded that
Banks failed to establish a prima facie case for discharge. In other words, Banks failed to
bring forth competent evidence showing that he is no long er dangerous to the public, and
is no longer in need of treatment and supervision. See Minn. Stat. § 253D.31; Call,
535 N.W.2d at 319.
The evidence presented by Banks include d the testimony of two MSOP security
counselors, his own testimony, and several exhibits. Banks contends that the testimony of
the security counselors, who are akin to prison guards, provides compet ent evidence

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showing that he has met the requirements for discharge. Banks emphasizes that the security
counselors are highly trained in observing and documenting behavior and asserts that
experts rely upon information from securi ty counselors when evaluating committed
persons. But Banks’s argument ignores that ne ither of the security counselors actually
opined as to whether Banks met the criteria for discharge and also ignores that both testified
that they are not qualified to provide such an opinion. Thus, the panel correctly concluded
that the testimony of the security counselors was not competent because it did not support
any of the elements of a prima facie case for discharge.
Similarly, Banks’s testimony and exhibits are insufficient to establish a prima facie
case for discharge. At the hear ing, Banks testified that he has “grown up,” “aged out of
the system,” and has no intention of reoffending. In In re Civil Commitment of Poole, this
court held that a petitioning pa rty’s conclusory statements and uncorroborated assertions
were insufficient to establish a prima facie case for discharge. 921 N.W.2d 62, 68-69
(Minn. App. 2018) (noting that if courts ac cepted personal assertions the threshold for
obtaining second-phase hearings would re st on “committed persons uttering magic
words”), review denied (Minn. Jan. 15, 2019). Acco rdingly, Banks’s conclusory
statements and assertions about his risk of re-offense are insufficient to show that he is no
longer dangerous to the public and no longer in need of inpatient treatment.
The only other evidence in the record offered by Banks to support his petition is his
testimony about his discharge pl anning efforts, a written discha rge plan, and a series of
scholarly articles. While this evidence shows that Banks has given serious thought to the
steps he would take to adjust to open society if discharged, these considerations alone are

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not sufficient to establish a prim a facie case for discharge. See Minn. Stat. § 253D.31;
Call, 535 N.W.2d at 319. And finally, the scholarly articles that Banks offered into the
record do not provide any evidence as to whether Banks, as an individual, meets the criteria
for discharge. As the panel correctly found, none of these articles provide any information
specific to Banks.
Banks has failed to present sufficient eviden ce to establish a prima facie case that
he meets the criteria for discharge under Minn. Stat. § 253D.31. Call, 535 N.W.2d at 319.
Even viewing the evid ence offered by Banks in the light most favorable to him, the
evidence is not competent to show that Banks is no longer dangerous to the public, and is
no longer in need of trea tment and supervision. See Minn. Stat. § 253D.31; Call,
535 N.W.2d at 319.
B. The panel did not make credibility determinations or weigh evidence.
Banks argues that the panel erred by making credibility determinations and
weighing the evidence when considering the commissione r’s motion to dismiss the
petition. During a first-stage hearing on a discharge petition, the supreme court has
instructed that
the Appeal Panel may not weigh the evidence or make
credibility determinations wh en considering a motion to
dismiss under Rule 41.02(b) made at the close of a first-phase
hearing. Instead, the Appeal Panel is required to view the
evidence produced at the first-phase hearing in a light most
favorable to the committed person.

Coker, 831 N.W.2d at 490-91.

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We find no support for Banks’s argument that the panel weighed the evidence or
made any credibility determinations. The panel’ s order reflects that the panel considered
all of the evidence offered by Banks and viewed that evidence in the light most favorable
to Banks. There is no indication in the order that the panel weighed the evidence or made
any credibility determinations. This conclusion is confirmed by our own de novo review.
As discussed above, even view ing the evidence in the light most favorable to Banks, the
evidence introduced by Banks during the first-phase hearing was not sufficient to establish
a prima facie case for discharge. Consequently, we conclude that the commitment appeal
panel appropriately considered the eviden ce when it dismissed Banks’s petition for
discharge.
In sum, because Banks did not meet his burden to establish a prima facie case for
discharge and because the pane l appropriately evaluated Banks’s evidence in accordance
with the supreme court’s inst ruction, the panel did not e rr when it dismissed the petition
under Minn. R. Civ. P. 41.02(b).
II. Banks’s assertions that he has been denied due process are without merit.

Banks also argues that MSOP violated hi s right to due process because MSOP did
not provide him with a qualified expert who could testify on his behalf at the hearing and
because MSOP failed to provide adequate treatment.
Banks did not raise these or any other due-process arguments during the first-phase
hearing. An appellate court generally must consider only those issues raised below.
Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).

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Even if Banks’s due-process claims are properly before us, his arguments are not
supported by the record. First, Banks argues that he has a right under Minn.
Stat. § 253B.03, subd. 5 (2018), to a “qualified assessment by a qualified expert so that he
has the opportunity to go forward with competent evidence to the [panel].” He maintains
that he was denied this right and as a result he was not able to establish a prima facie case
for discharge. Minnesota Statutes section 253B.03 (2018) provides certain rights for civilly
committed patients. Civilly committed patient s have the right to periodic medical
assessments, at least annually, including assessment of the medical necessity of continuing
care. Minn. Stat. § 253B.03, subd. 5.
Banks does not dispute that he received periodic medical assessments as required
by Minn. Stat. § 253B.03, subd. 5. Rather, he contends that MSOP staff who performed
the assessments were not qualified expert s who could have prov ided testimony on his
behalf in support of his petition for discharge. Banks’s argument is based solely on an
assertion. There is no eviden ce in the record to support Ba nks’s claim that the staff who
performed his assessments were not qualified to provide testimony on the criteria for
discharge set forth in Minn. Stat. § 253D.31. Nor does he cite any precedent holding that
due process requires that staff who perform the assessments be qualified to provide expert
testimony at a hearing on a petition for discharge. Consequently, this argument lacks merit.
Banks also argues that he was deprived of due process because he cannot afford to
hire his own qualified expert. Here, too, Ba nks makes an assertion without any support.
Banks does not cite to any eviden ce in the record to demonstrat e that he cannot afford to
hire an expert. And, notably, while Banks wa s represented by counsel at the hearing, his

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attorney did not request that the panel appoint an expert to testify on Banks’s behalf or state
that Banks could not afford an expert. Nor did Banks’s a ttorney call Dr. Marshall, the
licensed psychologist and therapist who examin ed Banks prior to the hearing, to testify
regarding whether Banks met the criteria for discharge. Banks’s attorney also did not call
MSOP professionals who prepared the treatm ent report and the sexual-violence risk
assessment for the SRB. The record lacks support for Banks’s claim that he was denied
access to an expert who could te stify as to whether he meets the criteria for discharge.
Accordingly, Banks’s argument that he was denied due process because MSOP did not
provide him with “a qualified assessment by a qualified expert” is without merit.
Finally, Banks contends that he was deprived of due process because MSOP has not
provided him with adequate treatment as required by Minn. Stat. § 253B.03, subd. 7. The
record establishes Banks has chosen not to pa rticipate in treatment. “[A] person may not
assert his right to treatment until he is actually deprived of that treatment.” In re Martenies,
350 N.W.2d 470, 472 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). Moreover,
Banks presented no evidence that the treatment he was offere d was actually inadequate.
Ultimately, because Banks has declined to pa rticipate in treatmen t, he cannot claim a
due-process violation based on inadequate treatment.
In sum, because Banks failed to establis h a prima facie case for discharge, and
because Banks’s constitutional cl aims are not supported by the record, we affirm the
decision of the commitment appeal panel to dismiss Banks’s petition for discharge.
Affirmed.